67 Op. Att'y Gen. 214 (1978)
 
67 OAG 214  215  216  217  218

OPINION NO. OAG 58-78,

10 August 1978

Wisconsin Attorney General Opinions

Industry, Labor And Human Relations,
Department Of;
Public Property;
Public Records;

Plans and specifications filed with DILHR
under Section 101.12, Stats., are public
records under secs. 16.61 and 19.21, Stats.,
and are available for public inspection.

 
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FRED A. RISSER,
Chairman Committee on Senate Organization

On behalf of the Committee on Senate
Organization, you have requested my opinion
with respect to whether certain plans and
related documents filed with the Department
of Industry, Labor and Human Relations
(DILHR) are available to the public within
the scope of Section 19.21, Stats.
Correspondence attached to your request
indicates that there is a concern whether
certain building plans and specifications,
including those prepared by architects,
submitted to DILHR for approval should be
considered confidential as trade or
manufacturing secrets so as not to be
available to possible business competitors.

The documents under consideration are

    "essential drawings, calculations
     and specifications for public
     buildings, public structures
     and places of employment"

required by Section 101.12, Stats.

Plans for public buildings, public structures
and places of employment must be approved by
DILHR before construction is started.

Section 16.61(2)(a), Stats., defines public
records of a state agency as:  16.61(2)(a)
"Public records" means all books, papers,
maps, photographs, films, recordings, or
other documentary materials or any copy
thereof, regardless of physical form or
characteristics, made, or received by any
agency of the state or its officers or
employes in connection with the
transaction of public business and retained
by that agency or its successor as evidence
of its activities or functions because of the
information contained therein; except the
records and correspondence of any member of
the state legislature.

Section 19.21(1) and (2), Stats., provides:
 

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 in 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.

Duplication of university expansion materials
may be performed away from the office of the
custodian if necessary.

The plans and specifications involved are
required by law to be filed with DILHR, so
they qualify as "property or things" under
this statute.

I am unaware of any statute or constitutional
provision which would make these plans and
specifications confidential or privileged and
which would therefore exclude them from the
disclosure requirement of Section 19.21(2).

In the absence of statutory or constitutional
exception, the disclosure requirements of
Section 19.21(2) apply.

See 63 Op. Att'y Gen. 400, 405-406 (1974),
for a discussion and summary of criteria for
permitting or denying public access to
records.

In some states, architects' plans are
protected by common-law copyright as a
property interest, at least until
publication.

In a somewhat analogous area the Wisconsin
Supreme Court has recognized a common-law
cause of action in unfair competition
involving pirated tape recordings.

Mercury Record v. Economic Consultants,
64 Wis.2d 163, 183, 187,
218 N.W.2d 705 (1974).

Even if the Wisconsin court were to later
recognize that architects have a similar
common-law right or cause of action
with respect to their drawings and
specifications, it is my opinion that this
would not necessarily bestow any blanket
confidential status to such plans or
specifications filed with a state agency such
as DILHR under the statutes mentioned above.

Whether or not the filing requirement serves
the limited purpose of assuring safety in
construction and therefore is not a
publication or waiver of trade secrets or
other similar legal rights, see 18 Am. Jur.
2d Copyright and Literary Property Section
79, p. 369, the right to inspect and copy
does not itself imply the right to use the
material for unfair competition or other
similarly actionable purposes.


 
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See
Mercury Record v. Economic Consultants,
64 Wis.2d 163, 175,
218 N.W.2d 705 (1974).

Therefore, it is my opinion that since the
filing of the plans and specifications in
question is required by law in order to
obtain DILHR's approval to construct a public
building, they are public records and in most
cases subject to inspection and copying under
such reasonable regulations as the custodian
prescribes.

It is difficult to conceive of circumstances
where the kinds of plans which are required
to be submitted for approval here would be of
such a nature as to support a claim that they
contained trade secrets.

See Section 905.08, Stats., and
63 Op. Att'y Gen. at p. 408.

Nevertheless, in the unusual circumstance
where such a claim is made or when it appears
to the custodian that such a claim could
plausibly be maintained, this would be a
factor that the custodian should take into
account in performing the so-called balancing
of interests test and making a determination
whether
       "permitting inspection would result in
        harm to the public interest which
        outweighs any benefit that would
        result from granting inspection."

63 Op. Att'y Gen. at p. 406.

As the Wisconsin Supreme Court said in

Beckon v. Emery,
36 Wis.2d 510, 516,
153 N.W.2d 501 (1967):

     . . . 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. . . .
 

Thus, even a decision not to disclose must be
limited only to that portion of the plans and
related documents which would disclose the
trade secret.

In view of the likelihood that the
application of some of the general principles
stated above, particularly with respect to
trade secrets, may result in the custodian
being obliged to make such determinations on
a case-by-case basis without legislative
guidance, I respectfully suggest that this
may be a matter where public policy should
be expressed by legislative enactment.

BCL:JEA

 
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