72 Op. Att'y Gen. 99 (1983)
 
72 OAG 99  100  101  102  103  104

OPINION NO. OAG 28-83,

Wisconsin Attorney General Opinions

4 August 1983

Open Records; Public Records;

Preliminary versions of a document prepared
by an employe for his or her own or another's
signature are not public records.

Public records must have some relation
to the functions of the agency.

Separation costs must be borne by the agency.

Actual damages are the liability of the
agency. Punitive damages and forfeitures
can be the liability of either the agency
or the legal custodian or both.

Section 895.46(1)(a) probably provides
indemnification for punitive damages
assessed against the custodian
but not for forfeitures.

LINDA R. REIVITZ, Secretary
Department of Health and Social Services

Your predecessor has requested my opinion on
a number of questions under the new open
records law, sections 19.31 through 19.39,
Stats., which went into effect on
January 1 1983:

 
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1.   When an employe authors a document for
     his own or another's signature and the
     preliminary versions are reviewed by his
     supervisors, other employes or persons
     outside the Department for approval or
     comments, are the preliminary versions
     "records" under Section 19.32(2).

Section 19.32(2) provides that

     record does not include drafts, notes,
     preliminary computations and like
     materials prepared for the originator's
     personal use or prepared by the
     originator in the name of a person for
     whom the originator is working.

The preliminary versions of the document
would constitute "drafts" as that
term is used in section 19.32(2).

Section 990.01 provides:

Construction of laws; words and phrases.

In the construction of Wisconsin laws the
words and phrases which follow shall be
construed as indicated unless such
construction would produce a result
inconsistent with the manifest
intent of the legislature:

990.01(1) GENERAL RULE.

     All words and phrases shall be construed
     according to common and approved usage;
     but technical words and phrases and
     others that have a peculiar meaning
     in the law shall be construed
     according to such meaning.

The word "draft" is not a technical word,
and its common and approved definition
is "constituting a preliminary
or tentative version."

Webster's Seventh
New Collegiate Dictionary 251 (1972).

Consequently, all preliminary versions of a
document prepared by an employe for his or
her own or another's signature do not
constitute "records" under section 19.32(2).

When statutory language is clear and
unambiguous on its face, the intention
of the Legislature is to be determined from
the plain meaning of the statute itself.

State v. Engler,
80 Wis.2d 402, 406,
259 N.W.2d 97(1977).

2.   Are copies of documents received from
     other agencies purely for informational
     purposes and concerning matters not
     affecting the Department's functions
     subject to disclosure under the open
     records law?

Section 19.32(2) defines "record" to
include any material

    "which has been created
     or is being kept by
     the authority."

Section 16.61(2)(b) defines "record"
to include any material

    "made, or received by any
     agency of the state or
     its officers or employes
     in connection with the
     transaction of public
     business . . . . ."

 
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Section 19.21(1) provides:

Custody and delivery of
official property and records.

19.21(1)

     Each and every officer of the state, or
     of any county, town, city, village,
     school district, or other municipality
     or district, 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.

These statutes should be construed together
and read to include as public records
materials that the officer is under
a legal duty or obligation to preserve
and that have some relation to the
function of his or her office.

This is clear from section 19.31, which
declares as public policy the right
of the electorate to be informed

    "regarding the affairs of government and
     the official acts of those officers and
     employes who represent them."

See also prior opinions of this office.[1]

In my opinion, the documents you describe
would not have sufficient connection with
the function of your office to qualify as
public records and, therefore, would not
have to be preserved or disclosed by you.

3.   May the costs of separating confidential
     information from non-confidential
     information under Section 19.36(6),
     as created by Chapter 335, Laws of 1981,
     be charged to the person who requests
     access to the record?

Section 19.36(6) provides that

     If a record contains information that
     may be made public and information that
     may not be made public, the authority
     having custody ofthe record shall
     provide the information that may
     be made public and delete the
     information that may not be made
     public from the record before release.

Since there is no provision made therein or
elsewhere in the law for charging such
separation costs to the person who
requests access to the record, the
agency must bear such costs.

 
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4.   Are the actual and punitive damages
     and the forfeitures provided for in
     Subsections 19.37(2) through 19.37(4)
     the liability of the agency or
     of the legal custodian?

If they are the liability of the custodian,
does Section  895.46, Stats., provide for
indemnification?

The relevant subsections of
section 19.37 provide as follows:

19.37(2)  COSTS, FEES AND DAMAGES.

     The court shall award reasonable
     attorney fees, damages of not less than
     $100, and other actual costs to the
     requester if the requester prevails
     in whole or in substantial part in
     any action filed under 19.37(1).

     Costs and fees shall be paid by the
     authority affected or the unit of
     government of which it is a part,
     or by the unit of government by
     which the legal custodian under
     Section 19.33 is employed and
     may not become a personal
     liability of any public official.

19.37(3) PUNITIVE DAMAGES.

     If a court finds that an authority or
     legal custodian under Section 19.33 has
     arbitrarily and capriciously denied or
     delayed response to a request or charged
     excessive fees, the court may award
     punitive damages to the requester.

19.37(4) PENALTY.

     Any authority which or legal custodian
     under Section 19.33 who arbitrarily and
     capriciously denies or delays response
     to a request or charges excessive fees
     may be required to forfeit not more
     than $1,000.

     Forfeitures under this section shall be
     enforced by action on behalf of the
     state by the attorney general or
     by the district attorney of any
     county where a violation occurs.

     In actions brought by the attorney
     general, the court shall award any
     forfeiture recovered together with
     reasonable costs to the state; and
     in actions brought by the district
     attorney, the court shall award any
     forfeiture recovered together with
     reasonable costs to the county.

It is clear from subsection 19.37(2) that
actual damages, together with costs and
attorney fees, are the liability of the
agency and not the legal custodian.

Punitive damages and forfeitures, on the
other hand, can be the liability of either
the agency or the legal custodian or both.

This conclusion is derived not only from the
language of subsections 19.37(3) and 19.37(4)
but also from the legislative history of
section 19.37.

 
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979 Senate Bill 482, which preceded 1981
SB 250, and which was ultimately enacted
as sections 19.31 through 19.39, provided
that all punitive damages and forfeitures
shall be assessed against the "authority."

The Legislative Reference Bureau's analysis
of engrossed 1979 SB 482 concluded that
punitive damages and forfeitures may be
assessed against "the affected unit of
government."

1981 SB 250 provided that punitive damages
and forfeitures shall be assessed against
the "authority or custodian."

The Legislative Reference Bureau's analysis
of engrossed 1981 SB 250 concluded that
punitive damages and forfeitures may be
assessed against "the officer or agency."

If punitive damages are assessed against the
legal custodian, I believe indemnification
by the authority would be provided
under section 895.46(1)(a).

Although it could be argued that this is not
so because section 19.37 makes the affected
unit of government liable for actual damages
and is silent with respect to its liability
for punitive damages and forfeitures
assessed against the legal custodian,
the long-standing administration of
section 895.46(1)(a) by this office
has been to provide indemnification
for punitive damages.

If a forfeiture is assessed against the legal
custodian, however, I believe indemnification
would not be provided by section
895.46(1)(a).

This is so because the general rule is that a
unit of government is not liable for
forfeitures assessed against its officials.
See

Bablitch & Bablitch v. Lincoln County,
82 Wis.2d 574, 581, 263 N.W.2d 218 (1978).

In my opinion, section 19.37 was not intended
to change the established law with respect to
governmental responsibility under section
895.46(1)(a) for punitive damages and
forfeitures assessed against
governmental officials.

BCL:JJG

[1]

63 Op. Att'y Gen. 400, 401 (1974)

and

31 Op. Att'y Gen. 195, 196 (1942).

 
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