72 Op. Att'y Gen. 68 (1983)
 
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OPINION NO. OAG 19-83,

Wisconsin Attorney General Opinions

2 June 1983

Public Records;

A demand for a written statement of
the reasons denying a request for
records may be made orally.

A mandamus action may be commenced only after
a written request for disclosure is made.

A written denial of even an oral request must
inform the requester that if the request was
in writing the denial is subject to review.

A copying fee but not a location fee
may be imposed on a requester for
the cost of a computer run.

Whether materials which result from staff
participation in activities of a review
or evaluation organization are
public records discussed.

LINDA REIVITZ, Secretary
Department of Health and Social Services

Your predecessor requested my opinion on a
number of questions relating to the open
records law, chapter 335, Laws of 1981:

1.   According to Section 19.35(4), if an
     oral request for a record is denied the
     reasons for the denial can be given
     orally unless the requester, within
     five business days after the denial,
     requests a written statement
     of the reasons.

     Under these circumstances, can the
     request for a written statement be
     presented orally, or can we insist
     that the request for written
     reasons be presented in writing?

 
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Section 19.35(4)(b) provides as follows:

If a request is made orally, the authority
may deny the request orally unless a demand
for a written statement of the reasons
denying the request is made by the
requester within five business
days of the oral denial.

If an authority denies a written request in
whole or in part, the requester shall receive
from the authority a written statement of the
reasons for denying the written request.

Every written denial of a request by an
authority shall inform the requester
that if the request for the record
was made in writing, then the determination
is subject to review upon petition for a
writ of mandamus under Section 19.37(1)
or upon application to the attorney
general or a district attorney.

In my opinion, the demand for a written
statement of the reasons denying
the request may be made orally.

The law does not authorize an authority to
insist that the demand be in writing.

2.   If timely oral requests for written
     denial reasons must be honored under
     Section 19.35(4), does the requester
     have a right to enforcement pursuant
     to Section 19.37?

     If not, must the requester still be
     notified that, if the original
     request was in writing, enforcement
     rights would be available?

     Section 19.37 seems to say that only
     requests originally presented in writing
     are enforceable, yet Section 19.35(4)
     states that every written statement of
     denial reasons must include certain
     language concerning enforcement.

Section 19.37(1) states in part that

    "if an authority withholds a record or a
     part of a record or delays granting
     access to a record or part of a record
     after a written request for disclosure
     is made, the requester may pursue
     either, or both, of the alternatives
     under Paragraphs 19.37(1)(a) and
     19.37(1)(b)."

The remedies provided by Section 19.37
are available only after a written
request for disclosure is made.

However, under Section 19.35(4)(b) a written
denial of an oral request must inform the
requester that if the request for the
record was made in writing, then the
determination is subject to review
pursuant to Section 19.37(1).

3.   The Department of Health and Social
     Services often has computer data
     without having a presently existing
     printout of the data.

     Section 19.35(1)(e) requires us to
     produce printouts for examination
     by requesters.

 
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     I am informed that the cost of a
     computer run to produce a printout
     can frequently be quite expensive.

     If the requester wishes to obtain his or
     her own copy of the printout, can the
     cost of the computer run be charged
     to the requester as a copying fee?

     If the requester merely wishes to
     examine the printout, rather than
     to obtain a copy, could the computer
     run cost be charged as a record
     location fee (if at least $50)
     or as some other type of fee?

Section 19.35(1)(e) provides that

    "except as otherwise provided by law,
     any requester has a right to receive
     from an authority having custody of
     a record which is not in a readily
     comprehensible form a copy of the
     information contained in the record
     assembled and reduced to written
     form on paper.

Section 19.35(3)(a) and 19.35(3)(c)
states as follows:

19.35(3)(a)

An authority may impose a fee upon the
requester  of a copy of a record which
may not exceed the actual, necessary and
direct cost of reproduction and transcription
of the record, unless a fee is otherwise
specifically established or authorized
to be established by law.

. . . .

19.35(3)(c)

Except as otherwise provided by law or as
authorized to be prescribed by law, an
authority may impose a fee upon a requester
for locating a record, not exceeding the
actual, necessary and direct cost of
location, if the cost is $50 or more.

Section 19.35(1)(e) gives any requester
the right to receive from an authority
a copy of the information contained
in the record "assembled and reduced"
to written form on paper.

Section 19.35(3)(a) authorizes the
authority to impose a fee upon the
requester for the actual, necessary
and direct cost of "reproduction
and transcription" of the record.

In my opinion, the reproduction and
transcription of a record includes
the assembly and reduction of the
record to written form on paper.

Therefore, you may impose the cost
of the computer run on the
requester as a copying fee.

However, I do not believe you may impose the
cost of the computer run on the requester as
a location fee under Section 19.35(3)(c)
since you do not have to locate the record.

All that needs to be done is to reduce
the information contained in the record to a
readily comprehensible form on paper.

 
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I am not aware of any other statutes that
would justify imposing the cost of the
computer run on the requester.

4.   In an unpublished opinion of April 30,
     1979 (OAG 50-79), you concluded that
     Section 146.38, Stats., does not
     apply to records of this
     Department's activities.

     The opinion responded to questions
     concerning official health
     regulatory activities of
     this Department as an agency.

     This Department's staff, however,
     occasionally serve on private health
     care services review organizations,
     doing so with DHSS sponsorship
     or encouragement.

     Such staff may have records of their
     activities on behalf of the private
     organization at the premises of
     their DHSS offices.

     I presume these records must be treated
     as records of the Department of
     Health and Social Services.

     Under such circumstances, do the
     confidentiality restrictions of
     Section 146.38 apply to the
     records our staff hold of
     their private organization
     activities?

The question may be restated: When a member
of the staff of the Department is a member
of and has in his or her possession records
of a review or evaluation organization within
the purview of Section 146.38, do such
records which otherwise would be nonpublic
records become public records by virtue of
their being in the custody of a member
of the staff of the Department?

The answer depends on whether the record has
been created or is being kept by the
Department, or you as its secretary
and acting in such capacity.

Section 19.32(2) defines record as any
material on which is recorded or preserved
information "which has been created or is
being kept by an authority."

For purposes of this question, authority
is defined in Section 19.32(1) at
a state office or agency.

If the records of a review or evaluation
organization were not prepared for the
benefit or use of the Department, or you as
its secretary, and are not in the possession
of a member of the staff in his or her
capacity as such, they would not be
public records within the definition
of that term found in Section 19.32(2).

They would be private records and their mere
possession by a public officer or employe
does not, absent the aspects embraced
in Section 19.32(2), convert them
into public records.

The fact that the person having custody of
such records is a staff member is an
incidental and nonmaterial fact.

 
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If, however, the records were prepared for
the Department or for you as its secretary,
to serve a Department aim, function or
need then the staff member would possess
the records as a staff member and such
status would no longer be an
incidental and nonmaterial fact.

I would consider material to the issue a
consideration of whether participation
in the activities of the review or evaluation
organization by a member of the staff of the
Department involves the use of state time or
money, whether such participation is required
by the staff member's prescribed duties or
necessary for the proper fulfillment of
the Department's statutory duties and
whether such participation is pursuant
to relationship between the Department
and the review or evaluation organization
for the mutual advantage of each.

If any of these questions must be answered
in the affirmative, the presumption would be
that such participation is a proper function
of the Department and that the materials
resulting from such participation
are public records.

BCL:JJG
 
 
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