63 Op. Att'y Gen. 573 (1974)
 
63 OAG 573 574 575 576 577 578

Wisconsin Attorney General Opinions

22 November 1974

Natural Resources, Department Of;
Public Records;

Public's right under Section 19.21, Stats.,
to inspect land acquisition files discussed.

L.P. VOIGT, Secretary,
Department of Natural Resources

You have requested my opinion on several
questions regarding the confidentiality of
the Department's land acquisition files.

In the last five volumes of the published
opinions of the Attorney General, the subject
matter of public records has been discussed
numerous times.[fn1]

I call these earlier opinions to your
attention, particularly for the benefit of
your staff attorneys who may be counseling
you on similar questions on future occasions.

With the exception of one opinion, the
mentioned opinions do not cover the subject
matter of land acquisition files. [fn2]
However, the principles of law, as set forth
in the opinions, are applicable to your
Department's land acquisition records.

Accordingly, many, if not all, of your
questions can be answered by reference
to these opinions.

 
63 OAG 573 574 575 576 577 578

You first ask:

1.   Are the Department of Natural Resources'
     proposed land conveyance files a public
     record under Section 19.21 of the
     Wisconsin Statutes?

     If so, under what  conditions may the
     Department treat a proposed land
     conveyance file confidential?

     May the Department treat the proposed
     land conveyance file confidential until
     the acquisition is closed and the deed
     recorded?"

I assume that your pending acquisition
files contain numerous documents.

Nothing said in this opinion should be
construed as implying that the entire
contents of any particular file, such
as a pending acquisition file, are
privileged or closed to public inspection.

There is then no such thing as a "closed"
file, a file closed to the public.

Based on the principles, as hereinafter
discussed, the right to public inspection
must be evaluated on a document by
document basis.

The contents of pending land acquisition
files of the Department are public records.

60 OAG 470 (1971), at 472.

See also, Section 16.80(2)(a), Stats.

Although the Department's pending acquisition
files are public records, this is not to say
that the entire contents of such files are
open to public inspection.

60 OAG 285 at 287.

In this opinion, we stated to you,

     that Section 19.21, Stats., will be
     construed in pari materia with Section
     66.77, Stats., . . . the Wisconsin open
     meeting law, and that the policy
     guidelines for holding closed meetings
     set forth in Section 66.77(3), Stats.,
     will be applicable to the question of
     confidentiality of records under
     Section 19.21.

Section 66.77 was repealed and recreated by
Chapter 297, Laws of 1973. Even though the
legislature changed the language of former
Section 66.77(3), such change does not
affect the validity of 60 OAG 285 in
respect to the present question.
 

Section 66.77, clearly exempts deliberations
or negotiations on the purchase of public
property from the requirement of open
meetings.

By applying the principles that are set forth
in 60 OAG at 287, the obvious and general
conclusion is that public records regarding
pending acquisitions do not have to be made
available for public inspection.

 
63 OAG 573 574 575 576 577 578

Your questions almost assume the answer which
is simply that generally speaking, the
contents of pending acquisition files are a
class of public records of which public
inspection may be refused until such time as
the transaction is closed and the public
interest fully protected by recording
of the conveyance.

You further ask:

2.   Are private or staff appraisals public
     records under Section 19.21, Wisconsin
     Statutes? If so, under what conditions
     may the Department treat an appraisal
     confidential? At what point, if ever,
     should an appraisal be available for
     public inspection?"

The appraisal is part of the Department's
pending acquisition file and the principles
discussed and the answers given in response
to your first series of questions apply in
all respects to this series of questions.

Your third question is:

3.   Does a private appraiser's contractual
     right to approve or disapprove the
     release of appraisal information
     affect the classification of a private
     appraisal as public record?

     Specifically, limitations comparable to
     the following:

          Neither all nor any part of the
          contents of this report shall be
          conveyed to the through
          advertising, public relations,
          news, sales or other media, without
          the written consent and approval of
          the author particularly as to the
          valuation conclusions and the
          identity of the appraiser or firm
          with which he is connected.

The sample contract language does not appear
to me to cause any problems with the
legislative and court doctrine of the
public's "right to know."

The contract language is not particularly
clear, but seems to preclude the Department
from disclosing the contents of the report by
particular means such as advertising, etc.

The contract provision or clause does not
relate to or bar public inspection.

However, even assuming that the quoted
language could be construed as intending to
bar public inspection, such contractual
provision would be invalid on the grounds of
being contrary to public policy.

Pedrick v. First Nat. Bank of Ripon (1954),
267 Wis. 436,
66 N.W.2d 154.

 
63 OAG 573 574 575 576 577 578

Knowledge of the duties and responsibilities
imposed by law on your Department are imputed
to persons who enter into contracts with your
Department.

Herro v. Wis. Fed. Surp. P. Dev. Corp.
(1968), 42 Wis.2d 87, 114, 166 N.W.2d 433.

It can be stated unequivocally that the court
would not uphold action barring public
inspection on the basis of the quoted
contractual language.

What the public does with the information
gathered from such public inspection is not
the Department's responsibility, nor can any
liability attach to the Department from the
public's subsequent use.

You also ask:

4.   If the appraisal or the proposed land
     conveyance file is available for public
     inspections, what use, if any, may
     information contained therein be used
     for private gain?

In 58 OAG 67 (1969), the following language
appears which was quoted from

State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672,
137 N.W.2d 470:

     That his motivation in seeking
     inspection is to benefit his newspaper
     and permit it to publish the material
     gained therefrom is immaterial.

     The fact that he as a citizen deems it
     essential that the material contained in
     the report be made available to the
     public is sufficient to qualify him as
     the real party in interest. (P. 70)

Continuing, the opinion concluded:

     As our discussion in the answer to
     Question (1) indicates, a custodian of
     public records in this state cannot be
     concerned with the purposes behind
     a person's request to view records and
     obviously the purposes for which
     certified copies are requested
     is also immaterial. . . . . .

As stated in answer to your previous
question, the public's use of public
information is not the Department's
responsibility.

Lastly, you advise:

     Recently, this Department has received
     numerous requests for proposed land
     conveyance files containing both staff
     and private appraisals.

     The Department is concerned that by
     satisfying these requests
     confidentiality will be breached or
     future negotiations with prospective
     sellers will be prejudiced.

 
63 OAG 573 574 575 576 577 578

I see no issue of confidentiality in
the subject matter of pending acquisition
files in the sense that information is
gained by your Department on the
promise of confidentiality.

Certainly, the contract provision previously
quoted does not involve confidentiality,
for appraisals are contracted and
paid for by state funds.

For a discussion on confidentiality,
based on information acquired on a
promise of confidentiality, see

59 OAG 226 (1970);
60 OAG 284; and
60 OAG 422.

In summary, it is my opinion that the
contents of the Department's land acquisition
files are public records; that much of what
is contained therein may be privileged and
public inspection denied.

The grounds for denying public inspection and
the procedures to be employed, are fully
discussed in the numerous opinions of this
office previously referred to.

However, in conclusion, I do have some
general comments to make in regard to the
specific matter of land acquisition files.

As to acquisition files where the property
has been acquired, there can be no general
dispositive answer.

Whether public inspection should be allowed
or denied depends entirely on a balancing of
the public's "right to know," as against the
need to protect the public interest.

In way of illustration, I cite the example of
where a particular project may involve
numerous acquisitions.

Public inspection of the records pertaining
to closed transactions may seriously hinder
future negotiations on parcels yet to be
acquired within the particular project.

However, I cannot conclude that in all such
situations, disclosure or inspection may be
denied, for the time involved between the
date of the acquisition and the demand for
inspection must be considered as to whether
public inspection would really be detrimental
to the public interest.

Other factors that may have to be considered
by the custodian of the files within
this same context are the location
and similarity of the parcels acquired
to those to be acquired.

If the custodian of the Department's records
concludes that on balance the public interest
outweighs the public's "right to know,"
inspection may be denied even on closed
acquisition files.

The determination not to allow inspection
must be made not only on a case by case
situation, but on a document by document
basis with careful deliberation.

 
63 OAG 573 574 575 576 577 578

In any situation, including pending
acquisition files where public inspection is
refused, the specific reason or reasons must
be given to the person seeking inspection.

It is not sufficient to merely say
that such inspection would be
contrary to the public interest.

For a further discussion on what factors may
be properly considered in denying public
inspection and the procedures to use when
denying public inspection, I specifically
refer you to 61 OAG 361 (1972).

Enclosed for your convenience is a copy of an
opinion dated September 19, 1974, addressed
to the Honorable Patrick J. Lucey, Governor,
which discusses many of these same issues.

VAM:CAB

[fn1]

57 OAG 138;
58 OAG 67;
59 OAG 226;
60 OAG 43;
60 OAG 284;
60 OAG 422;
60 OAG 470;
61 OAG 12;
61 OAG 297;
61 OAG 361.

[fn2]

61 OAG 361.
 
 
63 OAG 573 574 575 576 577 578