66 Op. Att'y Gen. 202 (1977)
 
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Wisconsin Attorney General Opinions

Opinion # OAG 56-77

11 July 1977

Anti-Secrecy;
Legislature;
Public Officials;
Public Records;
Telephone;

Records kept by the Assembly Chief Clerk of
telephone credit card numbers and of
long-distance telephone calls of
representatives are subject to
the public records law.

Custodian may make a determination whether
to disclose or divulge records in
specific instances.

ED JACKAMONIS,
Chairman Assembly Committee on Organization

Pursuant to a motion made and adopted by the
Assembly Committee on Organization, I have
been asked to comment on the following issue:

The Assembly Chief Clerk has been
requested to disclose the identity and
numbers of telephone credit cards issued
to Legislators.

Further, the Chief Clerk has been
requested to allow inspection of records
of long-distance calls by telephone
users, which are furnished to the Chief
Clerk as part of the billing process for
telephone services.

These records disclose, among other
things, the telephone number and
location of persons called; thus,
disclosure may invade the privacy
of those persons called.

The Committee desires an Opinion

(a) discussing the rights of all
    parties involved in or affected by
    the disclosure of the requested
    information; and

(b) limitations on, and legality of,
    disclosure of these records.

Section 19.21, Stats., concerning the custody
and delivery of official property and
records, provides in part:

   19.21(1)

   Each and every officer of the state . .
   is the legal custodian of and shall
   safely keep and preserve all property
   and things received from his
   predecessor or other persons and
   required by law to be filed, deposited,
   or kept in his office, or which are
   in the lawful possession or control of
   himself or his deputies, or to the
   possession or control of which he
   or they may be lawfully entitled,
   as such officers.

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19.21(2)

   Except as expressly provided otherwise,
   any person may with proper care, during
   office hours and subject to such orders
   or regulations as the custodian thereof
   prescribes, examine or copy any of the
   property or things mentioned Subsection
   19.21(1).

   Any person may, at his own expense and
   under such reasonable regulations as the
   custodian prescribes, copy or duplicate
   any materials, including but not limited
   to blueprints, slides, photographs and
   drawings . . .

Although none of the cases or opinions of the
Attorney General interpreting this section of
the statutes have concerned the duties of
legislative, as opposed to executive or
judicial, officials, at common law public
records were considered to include
legislative and judicial as well
as executive records.

66 Am. Jur. 2d.
Records and Recording Laws Section 2.

The Assembly Chief Clerk is an
officer of the Legislature.

Wisconsin Constitution Article XIII,
Section 6, provides:

The elective officers of the
legislature, other than the
presiding officers, shall be
a chief clerk and a sergeant
at arms, to be elected
by each house.

The duties of the chief clerks of the
Legislature are set forth in
Sections 13.15 to 13.17, Stats.

The keeping of the telephone records is not
specifically included within those duties;
however Section 13.15(1), Stats., provides in
part that the chief clerk

shall perform all such duties as by
custom appertain to his office and all
duties imposed by law or by the rules.

I understand from your letter that, whether
by custom or by rule, the duty of maintaining
the telephone records of legislators
appertains to the office of chief clerk.

That being the case, those records
are "in his lawful possession or control."

Sec. 19.21(1), Stats.

Since the Assembly Chief Clerk is an
"officer" of the Legislature, in my opinion
he is also an "officer of the state within
the meaning of Section 19.21, Stats., and
consequently records lawfully within his
control may be examined by the public in the
manner provided in Section 19.21(2), Stats.

The right of the public to examine and
copy records maintained by an officer
of the state is not absolute, however.

See

State ex rel. Youmans v. Owens,
28 Wis.2d 672,

137 N.W 2d 470 (1965);

Beckon v. Emery,
36 Wis.2d 510,
153 N.W.2d 501 (1967);

and

63 Op. Att'y Gen. 400 (1974),

which contains a detailed discussion of the
public right to full access to all public
records and the qualifications on that right.

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There are only three such qualifications.

Two of them, i.e., reasonable regulations
as to hours, procedure, etc., and express
statutory limitations, do not concern us
here.

The third is stated as follows in
63 Op. Att'y Gen. 400 at page 406:

The custodian may and has a duty to deny
inspection where he determines that
permitting inspection would result
in harm to the public interest which
outweighs any benefit that would
result from granting inspection . .

For example, and with no attempt to be
exhaustive, it may in some circumstances be
justifiable to withhold information obtained
under a pledge of confidentiality, minutes of
a grand jury investigation, or evidence
relevant to a criminal prosecution.

On the other hand, as far as I am aware, an
assertion of a right to privacy on the part
of persons with whom the officeholder deals
or to whom the records refer has never been
successfully asserted as a reason to justify
denial of access to those records, except in
a case where some other basis for denial also
exists, such as the danger of "undue" damage
to a person's reputation.

Correspondence directed to an officer of the
state in his official capacity is subject to
no general privilege against disclosure, even
though the identity of the correspondents
will of necessity be revealed when the
correspondence is made public.

See 63 Op. Att'y Gen. 400, supra.

In my opinion, records of calls by
telephone users are of a similar nature,
and no general privilege against disclosure
attaches to them.

Furthermore, public policy favors
the right of inspection.

As stated in
Beckon v. Emery, supra, at page 516:

   . . It is only in the unusual or
   exceptional case, where the harm to the
   public interest that would be done by
   divulging matters of record would be
   more damaging than the harm that is
   done to public policy by maintaining
   secrecy, that the inspection
   should be denied . .

Since, as stated above, there may exist
special circumstances which will justify
maintaining the secrecy of records that
otherwise would be available to the public,
I cannot state categorically that all of the
telephone records within the control of the
Assembly Chief Clerk must be made available
to the public.

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It is the duty of the custodian of records to
determine in the first instance whether
circumstances exist which justify
nondisclosure in a particular case, that is,
weigh whether the harm done to the public
interest by disclosure outweighs the right of
a member of the public to have access to
particular public records or documents.

State ex rel. Youmans, supra, at page 681.

BCL:WHW

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