68 Op. Att'y Gen. 68 (1979)
 
68 OAG 68  69  70  71

OPINION NO. OAG 24-79,

Wisconsin Attorney General Opinions

1 March 1979

Public Records;

Right to privacy law, Section 895.50, Stats.,
does not affect duties of custodian of public
records under Section 19.21, Stats.

ANTHONY S. EARL,
Secretary Department of Natural Resources

You state that the Department of Natural
Resources has developed certain mailing lists
in conjunction with programs the Department
is charged with administering.

Examples of these lists include conservation
and environmental organizations, citizen
committees for resource management and
environmental purposes and subscriber lists
to Natural Resources Notes and the Wisconsin
Natural Resources.

 
68 OAG 68  69  70  71

The Department has received requests for
copies of these lists from persons who
supposedly may or will use these lists for
private benefit or financial gain.

You ask what effect the new right of privacy
law, Chapter 176, Laws of 1977, may have upon
your duties as custodian of these records.

Chapter 176, Laws of 1977, created a cause of
action in Wisconsin for an invasion of one's
right of privacy.

By this act the Legislature created a tort,
that is, a civil wrong, enabling a person who
believes his right to privacy has been
invaded to sue, in a civil action, the person
whom he believes has invaded his right of
privacy and to collect money damages and
obtain other relief.

The new law contains no criminal penalties,
such as a fine or imprisonment, and thus is
not a criminal law.

Section 895.50, Stats., provides in part:

895.50(1) The right of privacy is recognized
          in this state. One whose privacy is
          unreasonably invaded is entitled to
          the following relief:

895.50(1)(a)   Equitable relief to prevent
               and restrain such invasion,
               excluding prior restraint
               against constitutionally
               protected communication
               privately and through the
               public media;

895.50(1)(b)   Compensatory damages based
               either on plaintiffs loss or
               defendant's unjust enrichment;
               and

895.50(1)(C)   A reasonable amount
               for attorney fees.

895.50(2)      In this section,
               "invasion of privacy"
               means any of the following:

895.50(2)(a)   Intrusion upon the privacy of
               another of a nature highly
               offensive to a reasonable
               person, in a place that a
               reasonable person would
               consider private or in a
               manner which is actionable
               for trespass.

895.50(2)(b)   The use, for advertising
               purposes or for purposes of
               trade, of the name, portrait
               or picture of any living
               person, without having first
               obtained the written consent
               of the person or, if the
               person is a minor, of his or
               her parent or guardian.

895.50(2)(c)   Publicity given to a matter
               concerning the private life of
               another, of a kind highly
               offensive to a reasonable
               person, if the defendant has
               acted either unreasonably or
               recklessly as to whether there
               was a legitimate public
               interest in the matter
               involved, or with actual
               knowledge that none existed.

               It is not an invasion of
               privacy to communicate any
               information available to the
               public as a matter of public
               record.

 
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895.50(3) The right of privacy recognized in
          this section shall be interpreted
          in accordance with the developing
          common law of privacy, including
          defenses of absolute and qualified
          privilege, with due regard for
          maintaining freedom of
          communication, privately and
          through the public media.

Section 19.21, Stats., deals with public
records, including the duties of custodians
of public records and the right of any person
to examine or copy public records.

This office has issued numerous opinions
dealing with public records.

61 Op. Att'y Gen. 297 (1972) advised the
state director of the Board of Vocational,
Technical and Adult Education that a list of
students who were on a waiting list for a
particular program was a public record within
the meaning of Section 19.21(1), Stats., and
subject to inspection and copying under
Section 19.21(2), Stats.

The opinion further advised that the fact
that a private organization which operated a
school or service giving a somewhat related
course intended to use the list to solicit
students would not be sufficient reason
for denying inspection or copying.

Likewise, I conclude that the lists you have
described are public records within the
meaning of Section 19.21(1), Stats., and
subject to inspection and copying within
the meaning of Section 19.21(2), Stats.
 

I have taken into consideration the
provisions of Chapter 176, Laws of 1977,
and particularly the newly created Section
895.50, Stats., and conclude that this does
not affect your duties as custodian of public
records.

This conclusion is supported not only by
principles of statutory construction, but by
the express language of Section 895.50(2)(C),
Stats., which provides in part:

  It is not an invasion of privacy to
  communicate any information available
  to the public as a matter of public record.

Under Section 19.21(2), Stats., a custodian
may prescribe reasonable regulations
concerning the examining and
copying of public records.

Unless specifically required to do so by
another statute, a custodian may, but is
not required to, furnish copies for a
reasonable fee.

Section 16.61(11), Stats.;

60 Op. Att'y Gen. 470, 483 (1971);

Musback v. Schaefer,
115 WIS. 357, 361,
91 N.W. 966 (1902).

Although there may be exceptions, the general
rule is that a custodian of public records
in this state cannot be concerned with
the purposes behind a person's request
to view records.

 
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58 Op. Att'y Gen. 67, 72 (1969);
63 Op. Att'y Gen. 400, 406 (1974).

BCL:JEA
 
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