77 Op. Att'y Gen. 100 (1988)

Wisconsin Attorney General Opinions

Opinion # OAG 22-88,
 
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11 May 1988

Public Records; Words And Phrases;

Treatment of drafts under the
public records law discussed.

DIANNE GREENLEY
Wisconsin Coalition for Advocacy

Pursuant to Section 19.39, Stats., you ask my
advice on the applicability of the public
records law to certain documents that have
been developed by employes of the Department
of Health and Social Services and have been
circulated for review and comment within
the department.

The department has denied your request on the
ground that the documents are not "completed
documents" and will not be released
until "fully developed and approved"
and reach "official status."

It is my opinion that the department's
position may not fully comport with
the state public records law, as
discussed in this opinion.

This opinion amplifies the earlier opinion
on this subject, contained in
72 OP. Att'y Gen. 99 (1983).

"Record" means any material on which
written, drawn, printed, spoken, visual
or electromagnetic information is
recorded or preserved, regardless of
physical form or characteristics, which
has been created or is being kept by an
authority.

"Record" includes, but is not limited
to, handwritten, typed or printed pages,
maps, charts, photographs, films,
recordings, tapes (including computer
tapes), and computer printouts.

"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;

materials which are purely the personal
property of the custodian and have no
relation to his or her office;

materials to which access is limited by
copyright, patent or bequest; and
published materials in the possession of
an authority other than a public library
which are available for sale, or which
are available for inspection at a public
library.

Sec. 19.32 (2), Stats.

It appears that the documents have been
created or are being kept by an authority.

The issue is whether they nevertheless
fall within the exclusion for

"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 . . "

 
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It has been stated as a rule of statutory
construction "that qualifying or limiting
words or clauses in a statute are to be
referred to the next preceding antecedent,
unless the context or the evident meaning
of the enactment requires a different
construction."

Jorgenson and another v. City of Superior,
111 Wis. 561, 566,
87 N.W. 565 (1901).

It is also said:

Under rule reddendo singula singulis
when one sentence . . contains several
antecedents . . and several consequents
. . they are to be read
distributively, so that each word . . is
applied to the subjects or consequents
to which it appears by context most
properly to relate and to which it is
most applicable.

Mutual Fed. S&L v. Sav. & L. Adv. Comm.,
38 Wis.2d 381, 387,
157 N.W.2d 609 (1968).

It is my opinion that the terms "drafts,
notes, preliminary computations and like
materials" are all modified by the phrases
"prepared for the originator's personal use
or prepared by the originator in the name of
a person for whom the originator is working."

This reading is consistent with the
development of the legislation that
resulted in the statute quoted above.

The legislation was initially introduced
as 1981 Senate Bill 250.

The product that passed the senate, Engrossed
1981 Senate Bill 250, provided that

"record" does not include drafts, notes
preliminary computations and like
writings prepared for the
author's personal use.

Id., page 6, lines 12-14.

The phrase about preparations for one's
superior was tacked on in Assembly Substitute
Amendment 1 to 1981 Senate Bill 250, page 6,
lines 11 and 12.

It seems clear that the "personal use"
qualification was thus intended to apply to
all antecedents and the preparation for one's
superior applies to any reasonably
appropriate antecedent.

 
77 OAG 100 101 102 103 104 105 106

In construing the public records law it is
important to keep in mind the mandate of
Section 19.31, which provides:

Declaration of policy.

In recognition of the fact that a
representative government is dependent
upon an informed electorate, it is
declared to be the public policy of this
state that all persons are entitled to
the greatest possible information
regarding the affairs of government and
the official acts of those officers and
employes who represent them.

Further, providing persons with such
information is declared to be an
essential function of a representative
government and an integral part of the
routine duties of officers and employes
whose responsibility it is to provide
such information.

To that end, Sections 19.32 to 19.37
shall be construed in every instance
with a presumption of complete public
access, consistent with the conduct of
governmental business.

The denial of public access generally is
contrary to the public interest, and
only in an exceptional case may access
be denied.

Consonant with this mandate is the
proposition that exceptions to the public
records law should be narrowly construed.

Hathaway v. Green Bay School Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682 (1984).

It follows that exclusion of material
prepared for the originator's personal
use is to be construed narrowly.

Most typically this exclusion may be invoked
properly where a person takes notes for the
sole purpose of refreshing his or her
recollection at a later time.

If the person confers with others for the
purpose of verifying the correctness of
the notes, but the sole purpose for such
verification and retention continues to
be to refresh one's recollection at a
later time, it is my opinion the notes
continue to fall within the exclusion.

However, if one's notes are distributed to
others for the purpose of communicating
information or if notes are retained for
the purpose of memorializing agency activity,
the notes would go beyond mere personal use
and would therefore not be excluded from
the definition of a "record."

As to the exclusion of materials "prepared by
the originator in the name of a person for
whom the originator is working," it is my
opinion the exclusion is likewise to be
construed narrowly.

Its terms contemplate interplay between the
author and the author's superior.

I assume the reason for the exclusion is to
treat as a nullity language which is
drafted for but which is not
accepted by one's superior.

Your letter gives rise to the question
whether a draft in the name of one's superior
continues to fall within the draft exclusion
if it is distributed to others before it is
submitted to or approved by the superior.

 
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In my opinion there should be some
latitude for collegial exchange
with respect to drafts.

On the other hand, I would generally consider
a draft to be taken beyond the intended scope
of the draft exclusion when it is distributed
to persons beyond those over whom the
designated superior has jurisdiction.

Here are some examples:

1.
A bureau staff employe drafting an analysis
in the name of the bureau director may
circulate a draft analysis among bureau
colleagues for review and comment without
having the draft become a "record."

If the draft is circulated outside the
bureau it becomes a "record."

2.
A bureau staff employe drafting a document in
the name of a division administrator could
circulate the draft in other bureaus in the
division as well as his own bureau without
having the draft lose draft status, because
the division administrator would have
jurisdiction over all personnel involved.

3.
A document prepared in the name of a
department secretary would retain draft
status until it is distributed outside the
department or is approved by the secretary.

Once a draft prepared for the signature of
one's superior is approved by the superior
for circulation, it is no longer a "draft."

This is so whether the material is described
as a "draft" or not and whether the
circulation is considered "formal"
or "official" or not.

The key thing is that the person having
responsibility for the disposition of the
"draft" has decided to use it in a way that
is beyond the drafting relationship that
exists between the drafter and the superior.

As with most public records issues,
determinations as to the exact status
of a "draft" will have to be made on a
case-by-case basis taking into account
the specific facts involved.

The foregoing guidance is not absolute, but I
believe it provides a reasonable and useful
framework for analyzing recurring questions
concerning "draft" documents under the
public records law.

It is the framework my office will
use in dealing with the subject.

Turning to the situation at hand,
you describe the documents you
requested as follows:

The first was a draft policy on
"fairness" in the Department's
dealings with inmates of Mendota
Mental Health Institute and
Winnebago Mental Health Institute.

 
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To the best of my knowledge it was
distributed to Mendota Staff for
their review sometime in the
winter of 1985-86.

It may also have been distributed
to Winnebago staff.

The second is a draft document on
informed consent which has been prepared
by a committee of doctors who work in
the various state institutions.

I believe that [th]ere may be a consent
form and supporting documents.

There may be additional documents on
informed consent which were prepared by
Division staff approximately a year and
a half ago and which were circulated to
the mental health institutes and state
centers for the developmentally
disabled.

In the first situation, the facts are not
specific enough to enable a definite answer.

It is clear that the material would
not qualify as something prepared
for one's "personal use."

Under the guidelines set forth above, the
status of the materials will depend on who
is responsible for signing the policy on
fairness and who authorized the circulation
of the policy among institute staff.

If, for example, the policy on fairness is to
be signed by the administrator of the
division having jurisdiction over the
institutions involved, the materials may be
considered "drafts" to the extent their
preparation and circulation occurs within the
division at levels below the administrator.

Thus a draft policy prepared by the staff of
one institution, but for the signature of the
division administrator, could be prepared and
circulated among staff at the institution and
would continue to qualify as a draft prior to
the time it is submitted to the
division administrator.

However, if under these same facts the
administrator approves the circulation of the
"draft" policy for review and comment, the
materials no longer fall within the draft
exclusion under the public records law.

Again, the draft exclusion is intended to
relieve governmental systems of materials
which are drafted but are not accepted by
the person for whom they are created.

Once the person for whom a draft is created
accepts the product for the purpose of
circulation for review and comment, the
material becomes a "record" for that purpose.

The other materials you request relating to a
policy on informed consent may be analyzed in
the same way, except your reference to a
committee raises new issues.

Where there is a formally constituted
committee having a specified membership and
mission, the work product of the committee
may call for a case-by-case analysis to
determine its status for the purpose
of the public records law.

 
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For the purpose of your request I am assuming
that the committee referred to is not a
formally constituted and distinct entity
and thus no further special analysis need be
undertaken, and the individual and collective
work product of the doctors referred to may
be analyzed in the way discussed above,
without regard to the existence of a
"committee."

DJH:RWL

 
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