74 Op. Att'y Gen. 1 (1985)
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Wisconsin Attorney General Opinions

Opinion # OAG 1-85,

10 January 1985

Public Records; Revenue, Department Of;
Access to public records by parties to
civil litigation, including administrative
proceedings, must be accomplished through
applicable means of discovery.

MICHAEL LEY, Secretary Department of Revenue

You have requested my opinion regarding a
situation involving litigation pending before
the Tax Appeals Commission and a request
under the public records law for access
to records in the custody of the
Department of Revenue.

You state that the records would be
accessible to parties to the litigation via
discovery procedures available within the
context of the litigation.

You ask whether the public records request
can be denied on the ground that the records
relate to pending litigation and are
available through discovery.

You submit that such an outcome is in the
public interest because it allows the
litigation to follow its normal
and orderly course.

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The framework for analyzing public records
issues is concisely stated in the recent
decision in

Hathaway v. Green Bay School Dist.,
116 Wis.2d 388, 392,
342 N.W.2d 682 (1984):

Public policy and public interest
favor the public's right to
inspect public records.

Without an exception based upon statute,
common law, or an overriding public
interest in nondisclosure, there is a
presumption that the public has the
right to inspect public records.

An exception to the general right or access
to public records must be established
specifically by statute or
common law limitation.

Sections 19.35(1)(a) and 19.36(1), Stats.

Examples of specific statutory exemptions are
those pertaining to public assistance records
(section 49.53), patient health care records
(section 146.82) and tax returns (section
71.11(44)(a)). An example of a common law
limitation is that relating to access to
documentary evidence in the hands of a
district attorney.

State ex rel. Youmans v. Owens,
28 Wis.2d 672, 680,
137 N.W.2d 470,
137 N.W.2d 241 (1965).

I am not aware of any specific statute or
common law limitation which generally exempts
records from the public records law because
they relate to pending litigation and are
subject to civil discovery.

It is my opinion, however, that where
specific discovery procedures apply, they
are the means by which litigants are to
accomplish access to public records.

Section 19.35(1)(a) codifies the general
rights of access as follows:

Except as otherwise provided by law,
any requester has a right to
inspect any record.

Substantive common law principles
construing the right to inspect,
copy or receive copies of records
shall remain in effect.

The exemptions to the requirement of
a governmental body to meet in open
session under Section 19.85 are
indicative of public policy, but
may be used as grounds for denying
public access to a record only if
the authority or legal custodian
under Section 19.33 makes a specific
demonstration that there is a need
to restrict public access at the time
that the request to inspect or copy
the record is made.

Section 19.35(1)(j) provides:

Notwithstanding Paragraphs 19.35(1)(a)
to 19.35(1)(f), a requester shall
comply with any regulations or
restrictions upon access to or
use of information which are
specifically prescribed by law.

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"Regulate" means to govern or direct
according to rule. "Regulation" is defined
as "an authoritative rule or principle
dealing with details of procedure . . ."

Webster's Third New International Dictionary
1913 (4th ed. 1976);

see Section 99.01(1), Stats.

It is my opinion that any discovery
procedures applying specifically to
administrative proceedings before
your agency do constitute the "regulation"
of access to public records that may
be relevant in the proceedings.

Thus the discovery procedures would be
incorporated in the public records law
through section 19.35(1)(j) as the
means of accomplishing access.

For your agency, section TA 1.35 Wis. Adm.
Code provides that

parties may obtain discovery before the
commission in the same manner and by the
same method as provided under ch. 804,
Stats., unless inconsistent with or
prohibited by statute . . . .

Thus, access to documents would be
accomplished via the procedures
set forth in section 804.09.

Incorporation of applicable rules of
discovery into the public records law
ensures the orderly access to records
in the context of litigation.

It also serves to guarantee that opposing
counsel will have notice of discovery thus
allowing full participation in or at least
monitoring of the discovery process.

This is in the general public interest and
serves to promote the orderly and effective
administration of justice.

See State ex rel. Dudek v. Circuit Court,
34 Wis.2d 559, 576,
150 N.W.2d 387 (1967).

I should note that if a matter is involved in
a quasi-judicial proceeding pending before an
administrative agency which does not have any
regulations relating to discovery, it is my
opinion that a party to the proceeding
would be free to use the public
records law for discovery.

The rules of civil procedure do not apply
to administrative proceedings unless
specifically made applicable by a
rule like section TA 1.35.

State ex rel. Thompson v. Nash,
27 Wis.2d 183,
133 N.W.2d 769 (1965).

of course, as a matter of courtesy and
professional practice, an attorney for
the requesting litigant should coordinate
access with opposing counsel.

The foregoing analysis does not resolve the
question of general public access to public
records that happen to be relevant to
pending litigation.

As mentioned earlier in this opinion,
the pendency of civil litigation involving
public records does not by itself trigger
any general statutory or common law
exception to the public records law.

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Therefore, the commencement of civil
litigation should not usually affect
the rights of the public to have
access to relevant records.

However, as always, it is possible that
there may be factors that would justify
nondisclosure of public records under the
common law balancing test which has been
carried forward in the statutes by virtue
of section 19.35(1)(a).

In the leading case of
State ex rel. Youmans v. Owens,
28 Wis.2d at 681,
the court said:

Thus the right to inspect public
documents and records at common
law is not absolute.

There may be situations where the harm done
to the public interest may outweigh the right
of a member of the public to have access to
particular public records or documents.

Thus, the one must be balanced against
the other in determining whether
to permit inspection.

The commencement of litigation and pursuit of
discovery by a party to the litigation could
be a factor taken into account by a
custodian when confronted by an
independent public records request
for related relevant documents.

Although it should normally be possible to
satisfy both discovery and public records
requests, factors like timing, the nature of
the case and the nature and scope of the
records could possibly justify postponing
compliance with a public records request.

The determination will have to
be made on a case-by-case basis.


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