DOJ Public Records Notes 

Statutes   1999 Seminar Notes   Meetings Home

TABLE OF CONTENTS:



0.    INTRODUCTION

I.    Public Policy of Untrammeled Inquiry

II.   Public Records - Definitions

III.  Records Requester - Definition

IV.   Protocol for Requesters

V.    Required Responses Protocol

VI.   Request Analysis - Existence Precedes Essence.

VII.  Response Specificity + Sufficiency Requirements.

VIII. Duty to Notify

IX.   Actual, Necessary and Direct Costs limitations.

X.    Enforcement and Penalties

      Related Criminal Penalties
STATUTES WI Open  Records Law FOI




INTRODUCTION: The following GJS "Page" is based upon Wisconsin Department of Justice (DOJ) topics of discussion addressed by Attorney Alan M. Lee in 1998 Public Records Seminars. With minor exceptions, manifested in recent case law, Lee's lecture notes are essentially identical to his handouts used in previous DOJ 1991-1998 seminars. DISCLAIMERS: 0.   The compiler of following has no personal or      pecuniary relationship with Alan M. Lee. 1.   He who is his own lawyer MAY have a fool for a client. 2.   He who has an attorney MAY have a fool for an lawyer.      For more on this visit NOLO and HALT with many links. 3.   Litigators AND attorneys MAY find the following useful. 4.   Litigators are encouraged to consult with Alan M. Lee. 5.   Fools can ask questions that confound the wisest man. 6.   Review and study Lee's eleven page PUBLIC RECORDS      handout BEFORE asking questions. Section 19.39. 7.   Obtain hard copies of Lee's Public Records handout      Phone, fax or E-mailing requests to DOJ offices. 8.   Steinke does not speak for either Doyle or Lee. 9.   Don't assume that laws are uniformly enforced.      Related law and facts are frequently ignored. 10.  Although considerable care has been exercised in      accuracy of TEXT of cited statutory and case law,      errors will occur. Such errors can be brought to      the attention of GJS by clicking on MAIL which      is found on nearly every page of this site. 11.  GJS site visitors are encouraged to offer feedback.
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Wisconsin Public Records Law Sections  19.31 - 19.39



I.  Public Policy



    Providing persons with information

    on the affairs of government is



      " an essential function of a representative

        government and an integral part of the

        routine duties of officers and employees

        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. "



        Section 19.31, Stats.



II. Record--Section 19.32(2), Stats.



A.  Anything recorded or preserved that has been

    created and is being kept by the agency.



    This includes tapes, films, charts,

    photographs, computer printouts, etc.



    Section 19.32(2), Stats.



B.  Exceptions:



    1.  Drafts and preliminary documents.



        Section 19.32(2), Stats.

        77 Op. Att'y Gen. 100 (1988),

        has limited this exception to

        documents that are circulated

        within the preparer's level

        of authority;



        this exclusion will be narrowly construed;

        the burden of proof is on the custodian.



        Fox v. Bock,

        149 Wis. 2d 403, 411, 417,

        438 N.W. 2d 589 (1989).



        Journal/Sentinel v. Shorewood School Board

        186 Wis. 2d 443,

        521 N.W. 2d 165 (Ct. App. 1994).



        Document not a draft if it is used for the

        purposes for which it was commissioned.



    2.  Published material available for sale

        or at the library.



    3.  Purely personal property;

        Section 19.32(2), Stats.



    4.  Material with access limited due to copyright,

        patent or bequest; Section 19.32(2), Stats;


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III. Requester - Section 19.32(3), Stats.



A.   Any person except a person incarcerated in a

     state prison, county jail, county house of

     correction or other state, county or municipal

     correctional detention facility.



     They may only get their own records or records

     of their children. 1995 Wisconsin Act 158.



IV.  Request



A.   The agency is not required to create a new record

     by extracting and compiling information

     from existing records in a new format.



     Section 19.35(1), Stats.



     George v. Record Custodian,

     169 Wis. 2d 573, 579,

     485 N.W. 2d 460 (Ct. App. 1992).



B.   Requests do not have to be in writing and

     the requester does not have to identify

     him/herself. The requester need not

     state the purpose of the request.



     Section 19.35(1)(h) and (i), Stats.



C.   If the request is in writing, a denial

     of access must also be in writing.



     Section 19.35(4)(b), Stats.



D.   A denial of a written request must inform

     the requester that the denial is subject

     to review in an action for mandamus

     under section 19.37(1) or by

     application to the DA or AG.





     Section 19.35(4)(b), Stats.



E.   If record doesn't exist, inform the requester.



     State ex rel. Zinngrabe v. School Dist. of Sevastopol,

     146 Wis. 2d 629,

     431 N.W. 2d 734 (Ct. App. 1988).



F.   The request must be reasonably specific for

     subject matter and length of time involved.



     Section 19.35(1)(h), Stats.



V.   Responding to the request.



A.   Must designate a legal custodian and

     post information on obtaining records.
     Sections 19.33 and 19.34, Stats.



     If a custodian is not designated,

     the highest ranking officer and

     chief administrative officer

     are the legal custodians.



     Section 19.33(4), Stats.



B.   Must respond " as soon as practicable

                    and without delay. "
     Section 19.35(4)(a), Stats.



     DOJ policy is that a reply should

     be given within 10 business days.



C.   Must provide a copy if requested.



     Coalition for Clean Government v. Larsen,
     166 Wis. 2d 159,

     479 N.W. 2d 576 (Ct. App. 1991)



     is no longer good law.
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D.  An arbitrary and capricious delay or denial

    exposes the custodian to punitive damages

    and a $1,000 forfeiture.



    Section 19.37, Stats.



    Forfeitures are not indemnified.



    72 Op. Att'y Gen. 99 (1983).



E.  Requests for records should be given high priority.



F.  Motives of the requester are not a factor.





VI. Analysis of request.



A.  Is there such a document?



B.  Usual situation when document exists.



    1.   Presumption in favor of access.
         Section 19.31, Stats.;



         State ex rel. Youmans v. Owens,

          28 Wis. 2d 672, 683,

         137 N.W. 2d 470 (1965), 139 N.W. 2d 241 (1966).



    2.   Exceptions. Sec 19.36, Stats.;

         Hathaway v. Green Bay School District

         116 Wis. 2d 388, 397,

         342 N.W. 2d 682 (1984).



         a. State or federal law according confidentiality.

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

            patient health care records; Section 146.82,

            Stats. There are many statutes requiring

            confidentiality.



            Check the index to Wisconsin Statutes under

            both "Public Records" and specific subject,

            e.g., "veterinarians," Section 453.075, Stats.





         b. Common law limitation.

            Section 19.35(1)(a), Stats.

             

            See

            State ex rel. Richards v. Foust,

            165 Wis. 2d 429,

            477 N.W. 2d 608 (1991)
            (common law provides exception to

            access to district attorney's files).

               

            State ex rel. Young v. Shaw,

            165 Wis. 2d 276,

            477 N.W. 2d 340 (Ct. App. 1991)
            (criminal defendant has no right

            of discovery under common law).



        c.  Balancing test. Section 19.35(1)(a), Stats.

            State ex rel. Journal Co. v. County Court,

             43 Wis. 2d 297,305,

            168 N.W. 2d 836 (1969).



C. Applying the balancing test.



   1.   Test reasons for denial against statutory

        or common law factors which indicate that

        denying access may be appropriate.
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a.  Blanket exemptions as a matter of custodial

    policy will not hold up. Specific policy

    reason, rather than mere statement of

    legal conclusion, must be given.



    Village of Butler v. Cohen,

    163 Wis. 2d 819,

    472 N.W. 2d 579 (Ct. App. 1991).



b.  Statutory privileges.



    (1)  Evidentiary privileges - Chapter 905.

         Do not automatically provide

         sufficient reason to deny access.

         See, e.g.,



         1975 Judicial Council note

         to Section 905.09, Stats.



    (2)  Strictly interpreted.



         Davidson v. St. Paul

         Fire & Marine Ins. Co.,

          75 Wis. 2d 190,

         248 N.W. 2d 433 (1977).



    (3)  Lawyer-client. Section 905.03.

         Not merely an evidentiary privilege.
         Armada Broadcasting, Inc. v. Stim,

         177 Wis. 2d 272, 279-80,

         501 N.W. 2d 889 (Ct. App. 1993),



         rev'd on other grounds,

         183 Wis. 2d 463,

         516 N.W. 2d 357 (1994).
         SCR 20:1.6(a).



    (4)  Physician-patient.
         Section 905.04. Public policy

         reflected in Section 905.04.



         Also reflected in Section 146.82 -
         health care records and Wisconsin

         Administrative Code Section Med.

         10.02(2)(n) - unprofessional conduct.



    (5)  Section 19.36(8)--Informants. Statute

         requires custodians to withhold access to

         records involving confidential informants

         unless the balancing test requires otherwise.

         Custodian must delete any information which

         would identify an informant. "Informant"

         includes someone giving information under

         circumstances "in which a promise of

         confidentiality would reasonably be implied."



c.  Common law privileges.



    (1)  District attorney prosecution files.

         Richards v. Foust; Nichols v. Bennett,

         199 Wis. 2d 268,

         544 N.W. 2d 428 (1996).

         No right of access.



    (2)  Under common law, criminal defendant

         has no right of discovery.

         State ex rel. Young v. Shaw.
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   (3)  State ex rel. Downing v. Middleton Police

        Dept., unpublished Ct. Appeals Nov. 3, 1994.

        Held Foust covers records retained by police.



   (4)  Executive privilege.

        63 Op. Att'y Gen. 400 at 410.



d. Exceptions to the open meetings law as factors.

   Sections 19.35(1) and 19.85, Stats. Indicators

   of public policy, but not automatic.



   73 Op. Att'y Gen. 20, 22 (1984).



   (1)  Quasi-judicial deliberations.



   (2)  Personnel matters.



        (a)  See

             Wis. Newspress v.

             Sheboygan Falls

             School District,

             199 Wis. 2d 769,

             546 N.W. 2d 143 (1996).



        (b)  See

             Wisconsin State Journal v.

             U.W. - Platteville,

             160 Wis. 2d 31,

             465 N.W. 2d

             266 (Ct. App. 1990)



             for discussion of diminished

             expectation of privacy

             regarding public officials'

             professional conduct.



        (c)  See

             Milwaukee Journal v.

             U.W. Board of Regents,

             163 Wis. 2d 933

             (Ct. App. 1991).





        (d)  See

             Village of Butler v. Cohen,

             163 Wis.2d 819,

             472 N.W. 2d 579 (Ct. App. 1991),
             and

             Pangmann & Associates v. Zellmer,

             163 Wis. 2d 1070,

             473 N.W. 2d 578 (Ct. App. 1991)

             regarding personnel records

             of police officers.
             But see
             Klein v. Wisconsin Resource Center,

             slip opinion at 6 n.2

             (Ct. App. 1998).



        (e)  See

             Armada Broadcasting, Inc. v. Stim,

             183 Wis. 2d 463 (1994) legislative

             policy of protecting privacy of

             disciplinary actions gives employee a

             right to intervene in a mandamus action.



        (f)  Woznicki v. Erickson,

             202 Wis. 2d 178,

             549 N.W. 2d 699 (1996). See VIII.





    (3)  Probation or parole.
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    (4)  Strategy for crime detection or prevention.



    (5)  Public business involving investments,

          competitive factors or negotiations.



    (6)  Personal information and investigations,

         "which, if discussed in public, would be

         likely to have a substantial adverse effect

         upon the reputation of any person referred

         to."
         See



         Breier,

         89 Wis. 2d at 433.



         Section 230.13, Stats.
         Discipline, dismissal, demotion records

         of state classified employees are closed.



         Woznicki v. Erickson,

         202 Wis. 2d 178,

         549 N.W. 2d 699 (1996).



    (7)  Legal advice as to pending

         or probable litigation.



e.  Right of privacy. Section 895.50, Stats.



    (1)  Invasion of privacy,



         see



         Section 895.50(2)(a) and (b).



         "Highly offensive" conduct required.



         "It is not an invasion of privacy to

         communicate any information available to the

         public as a matter of public record."



         Section 895.50(2)(c).



         But see



         Woznicki v. Erickson,

         202 Wis. 2d 178,

         549 N.W. 2d 699 (1996).



         Supreme Court finds a private cause of action

         to stop release of records involving

         reputational or privacy interests.



    (2)  Access to FBI rap sheets held to be

         an unwarranted invasion of privacy,

         categorically.



         U.S. Dept. of Justice v.Reports Committee,

         109 5. Ct. 1468 (1989).
         But see letter of March 21, 1991, from

         Attorney General Doyle to Chief Arreola (Rap

         sheets are available under Wisconsin Law).



f.  Confidentiality Agreements.



    (1)  Settlements, even with court approval, of

         parties' agreement to keep confidential, are

         public records subject to the balancing test.



         In Matter of Estates of Zimmer,

         151 Wis. 2d 122,

         442 N.W. 2d 578 (Ct. App. 1989).



    (2)  Settlement, not filed in court, which agrees

         to confidentiality, fares no better.

         Journal/Sentinel,

         186 Wis. 2d 443;
         74 Op. Att'y Gen. 14 (1985);
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      (3)  Entering into a confidentiality agreement can

           require authority to choose between violating

           the agreement or the public records law.

           Eau Claire Press Co. v. Gordon,

           176 Wis. 2d 154,

           499 N.W. 2d 918 (Ct. App. 1993).



      (4)  May promise confidentiality if necessary to

           obtain information.

           Mayfair Chrysler-Plymouth v. Baldorotta,

           162 Wis. 2d 142,

           469 N.W. 2d 638 (1991).



D. Absolute Right To Access - No Balancing Test.



   1. Where access is expressly required by statute.

      Youmans, 28 Wis. 2d at 685a.



      a. E.g. - Section 59.14 -



         Court clerk required to disclose memorandum

         decision even though impounded by judge

         because Section 59.14 requires

         disclosure of all papers



         "required to be kept in his office."



         State ex rel. Journal Co. v. County Court,

          43 Wis. 2d 297,

         168 N.W. 2d 836 (1969).



         Section 59.14 also applies to papers

         required to be kept by the sheriff,

         register of deeds, county treasurer,

         register of probate, county clerk

         and county surveyor.



         State ex rel. Schultz v. Bruendl,

         168 Wis. 2d 101,

         483 N.W. 2d 238 (Ct. App. 1992)
         (discusses when records are

         "required to be kept" under Section 59.14).



      b. But, even absolute right to access can be

         limited if a statute allows sealing the

         records, if disclosure infringes on a

         constitutional right, or if the

         administration of justice

         requires limiting access

         to judicial records.



         Bilder v. Delavan,

         112 Wis. 2d 539, 555 (1983);



         Bruendl, 168 Wis. 2d at 108.



  2. By court decision.



     a.  E.g. - Daily arrest log at police department.

         Breier, 89 Wis 2d at 439.



     b.  Faculty outside income reports.

         Capital Times v. Bock,
         Dane County Case # 164-312, April 12, 1983.



     c.  Each was a ease in which case-by-case

         determination was claimed to pose excessive

         administrative burden.
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E.   If requester identifies self and states that

     the purpose of the request is to inspect

     records pertaining to the requester,

     see section 19.35(1)(am).



     A requester has a greater right of access to

     his or her own records than the general public has.



     But no right to attorneys fees or automatic damages.



     Section 19.37(2), Stats.



     There is now also a right to challenge the accuracy

     of a record. Section 19.365, Stats.



VII. The Response



     A. Reasons for denial must be specific and sufficient.



        1. Don't state a mere conclusion, be specific.



        2. The need to restrict access must still exist at

           the time the request is made for the record.



           Wis. State Journal v. U.W. Platteville,

           160 Wis. 2d 31, 38,

           465 N.W. 2d 266

           (Ct. App. 1990);



           Oshkosh Northwestern v. Oshkosh Library Bd.,

           125 Wis. 2d at 485.
           Reason to close a meeting under

           Section 19.85 not sufficient reason

           itself to deny access to a record

           from the meeting later.



        3. Even if the record falls within an exemption

           category, the custodian must make a specific

           demonstration justifying restriction on access.



        4. The purpose of the specificity requirement

           is to give adequate notice of the basis

           for denial and to ensure that the

           custodian has exercised judgment.
           Journal/Sentinel, Inc. v. Aagerup,

           145 Wis. 2d 818, 824,

           429 N.W. 2d 772 (Ct. App. 1988).



           a.  For statement of the specificity test, see

               Mayfair Chrysler v. Baldarotta,

               162 Wis. 2d 142 (1991).



           b.  For statement that specificity requirement

               is not met by mere citation to open

               meeting exemption statute,



               Aagerup, 145 Wis. 2d at 823.



               But see



               State ex rel. Blum v. Board of Education,

               209 Wis. 2d 377,

               565 N.W. 2d 140 (Ct. App. 1997).



               If confidentiality is guaranteed by

               statute, citation to statute

               is sufficient.



           c.  Court is not to conceive of

               reasons for denial.



               Oshkosh Northwestern Co.

                        v.

               Oshkosh Library Bd.,

               125 Wis. 2d 480, 486,

               373 N.W. 2d 459 (Ct. App. 1985).



               But see Blum,



               court not precluded from considering

               statutory exemption even if not

               cited by custodian.



       5. If part of the record is public information,

          then the public part must be disclosed.



          Section 19.36(6), Stats.
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      6.   If you cannot think of good and

          specific reasons for denying access,

          the conclusion is simple.



           Turn it over.



           This is one of the best ways to

           save time on public records requests.



           Honor the request and get

           on with your other work.



VIII. Duty to notify the subjects of records.



      A.  If release of records involves reputational

          or privacy interests, prosecutor must

          notify subject of intent to release.



          Woznicki v. Erickson, 202 Wis. 2d 178.



      B.  Must allow reasonable time for subject of

          record to appeal decision to circuit court.



      C.  Circuit court reviews prosecutor's

          decision de novo.



      D.  Doctrine applies to all personnel records

          of public employees.



          Klein v. Wisconsin Resource Center,

          slip opinion.



IX. Inspection, copying and fees.



      A.  The requester is to be given facilities

          comparable to those used by employees.



          Section 19.35(2), Stats.



      B.  The requester is entitled to a copy of a record

          including copies of audiotapes and videotapes.



          Section 19.35(1), Stats.



          There is a right to a copy of a computer

          tape, and a right to have the

          information on the tape

          printed out in a

          readable format.



          Section 19.35(1)(e), Stats.;



          75 Op. Att'y Gen. 133, 145 (1986).



     C.   Copy fees are limited to the



          "  actual, necessary and direct

             cost of reproduction. "



          Section 19.35(3)(a)Stats.



          1. The fee may also include the actual,

             necessary and direct cost of

             mailing or shipping.



             Section 19.35(3)(d), Stats.



          2. Costs associated with locating records may

             not be charged unless they exceed $50.



             Section 19.35(3)(c), Stats.



          3. Costs of separating the confidential parts of

             records from the public parts must be borne

             by the agency. 72 Op. Att'y Gen. 99 (1983).



          4. Photocopy fees should be around 15 cents

             per page, and anything in excess of

             25 cents is definitely suspect.
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          5.   May require prepayment of any fee

               if the total amount exceeds $5.00.



               Section 19.35(3)(f), Stats.
               Can refuse to copy until

               payment is received.



          6.   May provide records for free

               or at reduced charge.



               Section 19.35(3)(e), Stats.



X. Enforcement and Penalties.



   Section 19.37, Stats.



A. Mandamus.



   1.   Attorney access to contested records.



        Appleton Post-Crescent v. Janssen,

        149 Wis. 2d 294,

        441 N.W. 2d 255 (Ct. App. 1989).



   2.   In camera proceedings,



        Youmans, 28 Wis. 2d at 682.



        George, 169 Wis. 2d at 578, 582-83.



        State ex rel. Hill v. Zimmerman,

        196 Wis. 2d 419, 430,

        538 N.W. 2d 608 (Ct. App. 1995).



B. Assertion of right to access encouraged.



   1.   Attorneys fees and damages of not less than $100.



        Section 19.37(2), Stats.



        For attorney fee award, there

        must be an attorney-client relationship.



        State ex rel. Young v. Shaw,

        165 Wis. 2d 276, 294-97,

        477 N.W. 2d 340 (Ct. App. 1991)



        (no attorney fees for pro se attorney).



   2.   Discussing recovery of attorney fees

        where plaintiff "substantially prevails"

        and recovering fees and costs after

        the case is dismissed for being moot.



        Racine Ed. Ass'n v. Racine Bd. of Ed.,

        129 Wis. 2d 319,

        385 N.W. 2d 510 (Ct. App. 1986),



        145 Wis. 2d 518,

        427 N.W. 2d 414 (Ct. App. 1988).



   3.   No automatic damages if case arises

        under Section 19.37(1)(am), Stats.



C.   Punitive damages and civil forfeiture available

     if denial is arbitrary and capricious.



     Section 19.37(3) and (4), Stats.;

     Shaw, 165 Wis. 2d at 294 (punitive damages).



D.   May not destroy a record after receipt

     of  a request for sixty (60) days

     after denial or until case is done.



     Section 19.35(5), Stats.



E.   Penalties also available for excessive fees.



     Section 19.37(3) and (4), Stats.
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F.  Related CRIMINAL penalties.



1.  Destruction or concealment of

    public records with intent

    to injure or defraud.
    Section 946.72, Stats.



2.  Alteration of public records.
    Section 943.38, Stats.





Xl.  Federal Freedom of Information Act

     5 U.S.C. Section 552 does

     not apply to states.



       Hill, 196 Wis. 2d at 428. n.6.
















END OF HANDOUTS BY ALAN M. LEE

DURING RECENT 1998 SEMINARS.

misc\outline3 6-8-98
















ESSENTIAL READING FOR INFORMED CITIZENS:
1.  Open Records - A Compliance Guide
2.  Public Records - Lee's Seminar Notes:
Obtain FREE hard copies of both of above from

Honorable James E. Doyle, Jr. Attorney General.
James E. Doyle

Attorney General's Office     Voice: 608-266-1220

114 East State Capitol          Fax: 608-267-2779

Post Office Box 7857      doyleje@doj.state.wi.us

Madison WI 53707      http://www.doj.state.wi.us/


















Lee's misc\outline3 (6-8-98) electronic file

representing his June 1998 Seminar Notes

MAY be available from Alan himself.
Feel free to phone or fax Alan Lee:
Alan M. Lee, Esquire      

Department of Justice        Voice: 608-266-0020   

123 West Washington Avenue     Fax: 608-267-2223

Post Office Box 7857

Madison     WI  53702


STEINKE DERIVED ABOVE TEXT FROM OCR SCAN.

Any errors are those of Steinke. Not Lee.
The above is NOT posted on the DOJ site.

But a related COMPLIANCE GUIDE is posted.

CLICK ON BELOW. Compare with GJS site.
OPEN MEETINGS COMPLIANCE GUIDE
DOJ
Visit www.gjs.net for a variety of other documents.
Comments on above hyperlinked file welcome. MAIL
















     Section 19.37(3) and (4), Stats.
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980608AL

































WI Statutes 
19
II
PUBLIC RECORDS AND PROPERTY
 
Custody and delivery of

official property and records.
 
Proceedings to compel the

delivery of official property.
Transfer of records or materials

to historical society.
Refusal to deliver money,

etc., to successor.
State officers may require

searches, etc., without fees.
Declaration of policy.
 
Definitions.
Legal custodians.
Procedural information.
Access to records; fees.
Limitations upon access
and withholding.
Rights of data subject to challenge;
authority corrections.
Enforcement and penalties.
Interpretation by attorney general.


APPLICABLE  STATUTES TEXT:
 
 
SUBCHAPTER II PUBLIC RECORDS AND PROPERTY

19.21        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 the

             officer's predecessor or other persons

             and required by law to be filed,

             deposited, or kept in the officer's

             office, or which are in the lawful

             possession or control of the officer or

             the officer's deputies, or to the

             possession or control of which the

             officer or the officer's deputies may be

             lawfully entitled, as such officers.



19.21(2)     Upon the expiration of each such

             officer's term of office, or whenever

             the office becomes vacant, the officer,

             or on the officer's death the officer's

             legal representative, shall on demand

             deliver to the officer's successor all

             such property and things then in the

             officer's custody, and the officer's

             successor shall receipt therefor to said

             officer, who shall file said receipt, as

             the case may be, in the office of the

             secretary of state, county clerk, town

             clerk, city clerk, village clerk, school

             district clerk, or clerk or other

             secretarial officer of the municipality

             or district, respectively; but if a

             vacancy occurs before such successor is

             qualified, such property and things

             shall be delivered to and be receipted

             for by such secretary or clerk,

             respectively, on behalf of the

             successor, to be delivered to such

             successor upon the latter's receipt.





19.21(3)     Any person who violates this section

             shall, in addition to any other

             liability or penalty, civil or criminal,

             forfeit not less than $25 nor more than

             $2,000; such forfeiture to be enforced

             by a civil action on behalf of, and the

             proceeds to be paid into the treasury of

             the state, municipality, or district, as

             the case may be.



19.21(4)(a)  Any city council, village board or town

             board may provide by ordinance for the

             destruction of obsolete public records.



             Prior to the destruction at least

             60 days' notice in writing of such

             destruction shall be given the

             historical society which shall preserve

             any such records it determines to be of

             historical interest.



             The historical society may, upon

             application, waive such notice.



             No assessment roll containing forest

             crop acreage may be destroyed without

             prior approval of the secretary of

             revenue.



             This paragraph does not apply to school

             records of a 1st class city school

             district.



19.21(4)(b)  The period of time any town, city or

             village public record is kept before

             destruction shall be as prescribed by

             ordinance unless a specific period of

             time is provided by statute.



             The period prescribed in the ordinance

             may not be less than 2 years with

             respect to water stubs, receipts of

             current billings and customer's ledgers

             of any municipal utility, and 7 years

             for other records unless a shorter

             period has been fixed by the public

             records board under section

             16.61(3)(e) and except as

             provided under subsection

             19.21(7).





             This paragraph does not apply to school

             records of a 1st class city school

             district.



19.21(4)(c)  Any local governmental unit or agency

             may provide for the keeping and

             preservation of public records kept by

             that governmental unit through the use

             of microfilm or another reproductive

             device, optical imaging or electronic

             formatting.



             A local governmental unit or agency

             shall make such provision by ordinance

             or resolution.



             Any such action by a subunit of a local

             governmental unit or agency shall be in

             conformity with the action of the unit

             or agency of which it is a part.



             Any photographic reproduction of a

             record authorized to be reproduced under

             this paragraph is deemed an original

             record for all purposes if it meets the

             applicable standards established in

             sections 16.61(7) and 16.612.



             This paragraph does not apply to public

             records kept by counties electing to be

             governed bychapter 228.



19.21(4)(cm) Paragraph 19.21(4)(c) does not apply to

             court records kept by a clerk of circuit

             court and subject to SCR chapter 72.



19.21(5)(a)  Any county having a population of

             500,000 or more may provide by ordinance

             for the destruction of obsolete public

             records, except for court records

             subject to SCR chapter 72.



19.21(5)(b) Any county having a population of less   

            than 500,000 may provide by ordinance

            for the destruction of obsolete public

            records, subject to section 59.52(4)(b)

            and 59.52(4)(c), except for court

            records governed by SCR chapter 72.



19.21(5)(c) The period of time any public record

            shall be kept before destruction shall

            be determined by ordinance except that

            in all counties the specific period of

            time expressed within section 7.23 or

            59.52(4)(a) or any other law requiring a

            specific retention period shall apply.



            The period of time prescribed in the

            ordinance for the destruction of all

            records not governed by section 7.23 or

            59.52(4)(a) or any other law prescribing

            a specific retention period may not be

            less than 7 years, unless a shorter

            period is fixed by the public records

            board under section 16.61(3)(e).



19.21(5)(d) 1. Except as provided in subdivision 2.,

               prior to any destruction of records

               under this subsection, except those

               specified within section 59.52(4)(a),

               at least 60 days' notice of such

               destruction shall be given in writing,

               to the historical society, which may

               preserve any records it determines to be

               of historical interest.



               Notice is not required for any records

               for which destruction has previously

               been approved by the historical society

               or in which the society has indicated

               that it has no interest for historical

               purposes.



               Records which have a confidential

               character while in the possession of the

               original custodian shall retain such

               confidential character after transfer to

               the historical society unless the

               director of the historical society,

               with the concurrence of the original

               custodian, determines that such records

               shall be made accessible to the public

               under such proper and reasonable rules

               as the historical society promulgates.



19.21(5)(d) 2. Subdivision 1. does not apply to patient

               health care records, as defined in

               section 146.81(4), that are in the

               custody or control of a local health

               department, as defined in section

               250.01(4).



19.21(5)(e) The county board of any county may

            provide, by ordinance, a program for the

            keeping, preservation, retention and

            disposition of public records including

            the establishment of a committee on

            public records and may institute a

            records management service for the

            county and may appropriate funds to

            accomplish such purposes.



19.21(5)(f) District attorney records are state

            records and are subject to section

            978.07.



19.21(6)    A school district may provide for the

            destruction of obsolete school records.



            Prior to any such destruction, at least

            60 days' notice in writing of such

            destruction shall be given to the

            historical society, which shall preserve

            any records it determines to be of

            historical interest.



            The historical society may, upon

            application, waive the notice.



            The period of time a school district

            record shall be kept before destruction

            shall be not less than 7 years, unless a

            shorter period is fixed by the public

            records board under section 16.61(3)(e)

            and except as provided under subsection

            19.21(7). This section does not apply to

            pupil records under section 118.125.



19.21(7)    Notwithstanding any minimum period of

            time for retention set under section

            16.61(3)(e), any taped recording of a

            meeting, as defined in section 19.82(2),

            by any governmental body, as defined

            under section 19.82(1), of a city,

            village, town or school district may be

            destroyed no sooner than 90 days after

            the minutes have been approved and

            published if the purpose of the

            recording was to make minutes

            of the meeting.



19.21(8)    Any metropolitan sewerage commission

            created under sections 66.88 to 66.918

            may provide for the destruction of

            obsolete commission records.



            No record of the metropolitan sewerage

            district may be destroyed except by

            action of the commission specifically

            authorizing the destruction of that

            record.



            Prior to any destruction of records

            under this subsection, the commission

            shall give at least 60 days' prior

            notice of the proposed destruction to

            the state historical society, which may

            preserve records it determines to be of

            historical interest.



            Upon the application of the commission,

            the state historical society may waive

            this notice.



            Except as provided under subsection

            19.21(7), the commission may only

            destroy a record under this subsection

            after 7 years elapse from the date of

            the record's creation, unless a shorter

            period is fixed by the public records

            board under section 16.61(3)(e).



History: 1971 c. 215;

         1975 c. 41 s. 52;

         1977 c. 202;

         1979 c. 35, 221;

         1981 c. 191, 282, 335;

         1981 c. 350 s. 13;

         1981 c. 391;

         1983 a. 532;

         1985 a. 180 ss. 22, 30m;

         1985 a. 225;

         1985 a. 332 s. 251(1);



         Sup. Ct. Order, 136 Wis.2d xi (1987);



         1987 a. 147 ss. 20, 25;

         1989 a. 248;

         1991 a. 39, 185, 316;

         1993 a. 27, 60, 172;

         1995 a. 27, 201.



Mandamus petition to inspect county hospital's

statistical, administrative and other records

not identifiable with individual patients,

states cause of action under this section.

State ex rel. Dalton v. Mundy,

80 Wis.2d 190, 257 N.W.2d 877.



Police daily arrest list must be

open for public inspection.

Newspapers, Inc. v. Breier,

89 Wis.2d 417, 279 N.W.2d 179 (1979).



See note to 968.26, citing

In re Wis. Family Counseling Services v. State,

95 Wis.2d 670,

291 N.W.2d 631 (Ct. App. 1980).



Examination of birth records cannot be denied simply

because the examiner has a commercial purpose.

58 Atty. Gen. 67.



See note to 19.81, citing 60 Atty. Gen. 9.



Inspection of public records obtained under official

pledges of confidentiality may be denied where a clear

pledge has been made in order to obtain the

information, where the pledge was necessary to obtain

the information, and where the custodian determines

that the harm to the public interest resulting from

inspection would outweigh the public interest in full

access to public records.



Custodian must permit inspection of information

submitted under an official pledge of confidentiality

where the official or agency had specific statutory

authority to require its submission.

60 Atty. Gen. 284.



The right to inspection and copying of public records

in decentralized offices discussed.

61 Atty. Gen. 12.



Public records subject to inspection and copying

by any person would include list of students

awaiting particular program in a VTAE

(technical college) district school.

61 Atty. Gen. 297.



The investment board can only deny members of the

public from inspecting and copying portions of

the minutes relating to the investment of

state funds and documents pertaining

thereto on a case-by-case basis

where valid reasons for denial

exist and are specially stated.

61 Atty. Gen. 361.



Matters and documents in the possession or control of

school district officials containing information

concerning the salaries, including fringe

benefits, paid to individual teachers

are matters of public record.

63 Atty. Gen. 143.



Common school districts are presently without authority

to destroy records which fall within 19.21(1) and which

are not pupil records under 118.125(1).



Where city school district is involved, city council

could by ordinance provide for destruction of obsolete

school district records under 19.21(5)(a).



Meaning of public records as related to

school districts discussed.

63 Atty. Gen. 272.



Department of administration probably has authority

under subsection 19.21(1) and section 19.21(2), 1979

stats., [now see 19.35] to provide private corporation

with camera-ready copy of session laws which is product

of printout of computer stored public records if costs

are minimal. State cannot contract on a continuing

basis for the furnishing of this service.

63 Atty. Gen. 302.



Scope of the duty of the governor to allow members

of the public to examine and copy public records

in his custody discussed.

63 Atty. Gen. 400.



Public's right to inspect land acquisition

files of the department of natural resources

and relationship with 66.77 discussed.

63 Atty. Gen. 573.



Financial statements filed in connection with

applications for motor vehicle dealers' and motor

vehicle salvage dealers' licenses are public records

under 19.21(2), subject to limitations.

66 Atty. Gen. 302.



Sheriff's radio log, intradepartmental documents kept

by sheriff and blood test records of deceased

automobile drivers in hands of sheriff are public

records under 19.21(2), subject to limitations.

67 Atty. Gen. 12.



Plans and specifications filed with DILHR under 101.12

are public records under 16.61 and 19.21 and are

available for public inspection.

67 Atty. Gen. 214.



Under 19.21(1), district attorneys must preserve

indefinitely papers of a documentary nature,

evidencing activities of prosecutor's office.

68 Atty. Gen. 17.



Right to privacy law, 895.50, does not affect duties

of custodian of public records under 19.21.

68 Atty. Gen. 68.



Right to examine and copy computer-stored

information discussed.

68 Atty. Gen. 231.



After transcript of court proceedings is filed

with clerk of court, any person may

examine or copy transcript.

68 Atty. Gen. 313.



County under 500,000 may destroy obsolete

case records maintained by county

social services agency under 48.59(1).

70 Atty. Gen. 196.



VTAE (technical college) district is "school district"

under 19.21(6). District may not maintain

records on microfilm.

71 Atty. Gen. 9.



19.22    Proceedings to compel the delivery of

         official property.



19.22(1) If any public officer refuses or neglects to

         deliver to his or her successor any

         official property or things as required in

         section 19.21, or if the property or things

         shall come to the hands of any other person

         who refuses or neglects, on demand, to

         deliver them to the successor in the office,

         the successor may make complaint to any

         circuit judge for the county where the person

         refusing or neglecting resides.

          

         If the judge is satisfied by the oath of the

         complainant and other testimony as may be

         offered that the property or things are

         withheld, the judge shall grant an order

         directing the person so refusing to show

         cause, within some short and reasonable time,

         why the person should not be compelled to

         deliver the property or things.

          

19.22(2) At the time appointed, or at any other time

         to which the matter may be adjourned, upon

         due proof of service of the order issued

         under subsection 19.22(1), if the person

         complained against makes affidavit before the

         judge that the person has delivered to the

         person's successor all of the official

         property and things in the person's custody

         or possession pertaining to the office,

         within the person's knowledge, the person

         complained against shall be discharged and

         all further proceedings in the matter before

         the judge shall cease.



19.22(3) If the person complained against does not

         make such affidavit the matter shall

         proceed as follows:



19.22(3)(a) The judge shall inquire further into the

            matters set forth in the complaint, and

            if it appears that any such property or

            things are withheld by the person

            complained against the judge shall by

            warrant commit the person complained

            against to the county jail, there to

            remain until the delivery of such

            property and things to the complainant

            or until the person complained against

            be otherwise discharged according to

            law.



19.22(3)(b) If required by the complainant the judge

            shall also issue a warrant, directed to

            the sheriff or any constable of the

            county, commanding the sheriff or

            constable in the daytime to search such

            places as shall be designated in such

            warrant for such official property and

            things as were in the custody of the

            officer whose term of office expired or

            whose office became vacant, or of which

            the officer was the legal custodian, and

            seize and bring them before the judge

            issuing such warrant.



19.22(3)(c) When any such property or things are

            brought before the judge by virtue of

            such warrant, the judge shall inquire

            whether the same pertain to such office,

            and if it thereupon appears that the

            property or things pertain thereto the

            judge shall order the delivery of the

            property or things to the complainant.



History: 1977 c. 449;

         1991 a. 316;

         1993 a. 213.



19.23    Transfer of records or materials to

         the historical society.



19.23(1) Any public records, in any state office, that

         are not required for current use may, in the

         discretion of the public records board, be

         transferred into the custody of the

         historical society, as provided

         in section 16.61.



19.23(2) The proper officer of any county, city,

         village, town, school district or other

         local governmental unit, may under section

         44.09(1) offer title and transfer custody to

         the historical society of any records deemed

         by the society to be of permanent historical

         importance.

          

19.23(3) The proper officer of any court may, on order

         of the judge of that court, transfer to the

         historical society title to such court

         records as have been photographed or

         microphotographed or which have been on file

         for at least 75 years, and which are deemed

         by the society to be of permanent historical

         value.



19.23(4) Any other articles or materials which are of

         historic value and are not required for

         current use may, in the discretion of the

         department or agency where such articles or

         materials are located, be transferred into

         the custody of the historical society as

         trustee for the state, and shall thereupon

         become part of the permanent collections of

         said society.



History: 1975 c. 41 s. 52;

         1981 c. 350 s. 13;

         1985 a. 180 s. 30m;

         1987 a. 147 s. 25;

         1991 a. 226;

         1995 a. 27.



19.24    Refusal to deliver money, etc., to successor.



         Any public officer whatever, in this state,

         who shall, at the expiration of the officer's

         term of office, refuse or wilfully neglect to

         deliver, on demand, to the officer's

         successor in office, after such successor

         shall have been duly qualified and be

         entitled to said office according to law, all

         moneys, records, books, papers or other

         property belonging to the office and in the

         officer's hands or under the officer's

         control by virtue thereof, shall be

         imprisoned not more than 6 months or fined

         not more than $100.



         History: 1991 a. 316.





19.25    State officers may require searches, etc.,

         without fees.



         The secretary of state, treasurer and

         attorney general, respectively, are

         authorized to require searches in the

         respective offices of each other and in the

         offices of the clerk of the supreme court, of

         the court of appeals, of the circuit courts,

         of the registers of deeds for any papers,

         records or documents necessary to the

         discharge of the duties of their respective

         offices, and to require copies thereof and

         extracts therefrom without the payment of any

         fee or charge whatever.





         History: 1977 c. 187, 449.



19.31    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.



History: 1981 c. 335, 391.





The Wisconsin public records law.

67 MLR 65 (1983).



Municipal responsibility under the

Wisconsin revised public records law.

Maloney. WBB Jan. 1983.



The public records law and the

Wisconsin department of revenue.

Boykoff. WBB Dec. 1983.



The Wis. open records act: an update on issues.

Trubek and Foley. WBB Aug. 1986.



Toward a More Open and Accountable Government:

A Call For Optimal Disclosure Under the

Wisconsin Open Records Law. Roang. 1994 WLR 719.



19.32 Definitions. [SEE 1997 WISCONSIN ACT 27]



As used in sections 19.33 to 19.39:



19.32(1)  "Authority" means any of the following having

          custody of a record: a state or local office,

          elected official, agency, board, commission,

          committee, council, department or public

          body corporate and politic created by

          constitution, law, ordinance, rule or order;



          a governmental or quasi-governmental

          corporation except for the Bradley center

          sports and entertainment corporation;



          a local exposition district under

          subchapter II of chapter 229;



          any public purpose corporation,

          as defined in section 181.79(1);



          any court of law; the assembly or senate;



          a nonprofit corporation which receives

          more than 50% of its funds from a

          county or a municipality, as defined in

          section 59.001(3), and which provides

          services related to public health or

          safety to the county or municipality;



          a nonprofit corporation operating the

          Olympic ice training center under

          section 42.11(3);



          or a formally constituted subunit

          of any of the foregoing.





19.32(1c) "Incarcerated person" means a person who is

          incarcerated in a penal facility or who is

          placed on probation and given confinement

          under section 973.09(4) as a condition of

          placement, during the period of confinement

          for which the person has been sentenced.



19.32(1e) "Penal facility" means a state prison under

          section 302.01, county jail, county house

          of correction or other state, county or

          municipal correctional or detention facility.



19.32(1m) "Person authorized by the individual" means

          the parent, guardian, as defined in section

          48.02(8), or legal custodian, as defined in

          section 48.02(11), of a child, as defined in

          section 48.02(2), the guardian, as defined in

          section 880.01(3), of an individual adjudged

          incompetent, as defined in section 880.01(4),

          the personal representative or spouse of an

          individual who is deceased or any person

          authorized, in writing, by the individual

          to exercise the rights granted under this

          section.



19.32(1r) "Personally identifiable information" has the

           meaning specified in section 19.62(5).



19.32(2)  "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), computer

          printouts and optical disks.



          "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.



19.32(3) "Requester" means any person who requests

         inspection or copies of a record, except



         an incarcerated person, unless the person

         requests inspection or copies of a record

         that contains specific references to that

         person or his or her minor children for

         whom he or she has not been denied

         physical placement underchapter 767,

         and the record is otherwise

         accessible to the person by law.



History:  1981 c. 335;

          1985 a. 26, 29, 332;

          1987 a. 305;

          1991 a. 39,

          1991 a. 269 ss. 26pd, 33b;

          1993 a. 215, 263, 491;

          1995 a. 158.



See note to section 59.20, citing

C. L. v. Edson,

140 Wis.2d 168,

409 N.W.2d 417 (Ct. App. 1987).



Risk management study commissioned by corporation

counsel was not "draft" under 19.32(2); evidence showed

county paid for and used study in various ways.

Fox v. Bock,

149 Wis.2d 403,

438 N.W.2d 589 (1989).



A settlement agreement containing a pledge of

confidentiality kept in the possession of a

school district's attorney was a public

record subject to public access.

Journal/Sentinel v. Shorewood School Bd.

186 Wis.2d 443,

521 N.W.2d 165 (Ct. App. 1994).



"Records" must have some relation

to functions of agency.

72 Atty. Gen. 99.



Treatment of drafts under the

public records law discussed.

77 Atty. Gen. 100.



Open Records Policy to Wisconsin District Attorneys:

Can Charging Guidelines Promote Public Awareness?

Mayer. 1996 WLR 295.



19.33     Legal custodians.



19.33(1)  An elected official is the legal custodian of

          his or her records and the records of his or

          her office, but the official may designate an

          employe of his or her staff to act as the

          legal custodian.



19.33(2)  The chairperson of a committee of elected

          officials, or the designee of the

          chairperson, is the legal custodian

          of the records of the committee.



19.33(3)  The cochairpersons of a joint committee of

          elected officials, or the designee of the

          cochairpersons, are the legal custodians

          of the records of the joint committee.



19.33(4)  Every authority not specified in subsections

          19.33(1) to 19.33(3) shall designate in

          writing one or more positions occupied by an

          officer or employe of the authority or the

          unit of government of which it is a part

          as a legal custodian to fulfill its

          duties under this subchapter.



          In the absence of a designation the

          authority's highest ranking officer and the

          chief administrative officer, if any, are the

          legal custodians for the authority.



          The legal custodian shall be vested by the

          authority with full legal power to render

          decisions and carry out the duties of the

          authority under this subchapter.



          Each authority shall provide the name of the

          legal custodian and a description of the

          nature of his or her duties under this

          subchapter to all employes of the authority

          entrusted with records subject to the legal

          custodian's supervision.



19.33(5)  Notwithstanding subsection 19.33(4),

          if an authority specified in subsection

          19.33(4) or the members of such an authority

          are appointed by another authority, the

          appointing authority may designate a legal

          custodian for records of the authority or

          members of the authority appointed by the

          appointing authority, except that if such an

          authority is attached for administrative

          purposes to another authority, the

          authority performing administrative duties

          shall designate the legal custodian for the

          authority for whom administrative duties

          are performed.

          

19.33(6)  The legal custodian of records maintained in

          a publicly owned or leased building or the

          authority appointing the legal custodian

          shall designate one or more deputies to

          act as legal custodian of such records

          in his or her absence or as otherwise

          required to respond to requests as

          provided in section 19.35(4).



          This subsection does not apply to members

          of the legislature or to members of

          any local governmental body.



19.33(7)  The designation of a legal custodian does not

          affect the powers and duties of an

          authority under this subchapter.



19.33(8)  No elected official of a legislative body has

          a duty to act as or designate a legal

          custodian under subsection 19.33(4)

          for the records of any committee of

          the body unless the official is the

          highest ranking officer or chief

          administrative officer of the

          committee or is designated

          the legal custodian of the

          committee's records by

          rule or by law.



          History: 1981 c. 335.



19.34     Procedural information.



19.34(1)  Each authority shall adopt, prominently

          display and make available for inspection and

          copying at its offices, for the guidance of

          the public, a notice containing a description

          of its organization and the established times

          and places at which, the legal custodian

          under section 19.33 from whom, and the

          methods whereby, the public may obtain

          information and access to records in

          its custody, make requests for records,

          or obtain copies of records,

          and the costs thereof.



          This subsection does not apply to members

          of the legislature or to members of

          any local governmental body.



19.34(2)(a) Each authority which maintains regular

            office hours at the location where records

            in the custody of the authority are kept

            shall permit access to the records of the

            authority at all times during those office

            hours, unless otherwise specifically

            authorized by law.



19.34(2)(b) Each authority which does not maintain

            regular office hours at the location

            where records in the custody of the

            authority are kept shall:



            1.  Permit access to its records upon at

                least 48 hours' written or oral notice

                of intent to inspect or copy a record;



                or



            2.  Establish a period of at least two (2)

                consecutive hours per week during which

                access to the records of the authority

                is permitted.



                In such case, the authority may require

                24 hours' advance written or oral

                notice of intent to inspect

                or copy a record.



19.34(2)(c) An authority imposing a notice requirement

            under paragraph 19.34(2)(b) shall include a

            statement of the requirement in its notice

            under subsection 19.34(1), if the authority

            is required to adopt a notice under that

            subsection.



19.34(2)(d) If a record of an authority is occasionally

            taken to a location other than the location

            where records of the authority are

            regularly kept, and the record may be

            inspected at the place at which records of

            the authority are regularly kept upon one

            business day's notice, the authority or

            legal custodian of the record need not

            provide access to the record at the

            occasional location.



            History: 1981 c. 335.



19.35        Access to records; fees.



19.35(1)     RIGHT TO INSPECTION.



19.35(1)(a)  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.



19.35(1)(am) In addition to any right under paragraph

             19.35(1)(a), any requester who is an

             individual or person authorized by the

             individual, has a right to inspect any

             record containing personally identifiable

             information pertaining to the individual

             that is maintained by an authority and to

             make or receive a copy of any such

             information.



             The right to inspect or copy a record

             under this paragraph does not apply

             to any of the following:



19.35(1)(am) 1. Any record containing personally

                identifiable information that is

                collected or maintained in connection

                with a complaint, investigation or

                other circumstances that may lead to an

                enforcement action, administrative

                proceeding, arbitration proceeding or

                court proceeding, or any such record

                that is collected or maintained in

                connection with such an action or

                proceeding.

                

19.35(1)(am) 2. Any record containing personally

                identifiable information that,

                if disclosed, would do any

                of the following:



19.35(1)(am) 2. a.  Endanger an individual's life

                    or safety.



19.35(1)(am) 2. b.  Identify a confidential informant.



19.35(1)(am) 2. c.  Endanger the security of any state

                    correctional institution, as

                    defined in section 301.01(4),



                    jail, as defined in

                    section 165.85(2)(bg),



                    secured correctional facility, as

                    defined in section 938.02(15m),



                    secured child caring institution,

                    as defined in section 938.02(15g),



                    mental health institute, as defined

                    in section 51.01(12),



                    center for the developmentally

                    disabled, as defined in

                    section 51.01(3),



                    or the population or staff of any

                    of these institutions, facilities

                    or jails.



19.35(1)(am) 2. d.  Compromise the rehabilitation of a

                    person in the custody of the

                    department of corrections or

                    detained in a jail or facility

                    identified in subdivision 2. c.



19.35(1)(am) 3. Any record that is part of a records

                series, as defined in section 19.62(7),

                that is not indexed, arranged or

                automated in a way that the record can

                be retrieved by the authority

                maintaining the records series by use

                of an individual's name, address or

                other identifier.



19.35(1)(b)  Except as otherwise provided by law, any

             requester has a right to inspect a record

             and to make or receive a copy of a record

             which appears in written form.



             If a requester appears personally to

             request a copy of a record, the authority

             having custody of the record may, at its

             option, permit the requester to photocopy

             the record or provide the requester

             with a copy substantially as

             readable as the original.



19.35(1)(c)  Except as otherwise provided by law, any

             requester has a right to receive from an

             authority having custody of a record which

             is in the form of a comprehensible audio

             tape recording a copy of the tape

             recording substantially as audible as

             the original.



             The authority may instead provide a

             transcript of the recording to the

             requester if he or she requests.



19.35(1)(d)  Except as otherwise provided by law, any

             requester has a right to receive from an

             authority having custody of a record which

             is in the form of a video tape recording a

             copy of the tape recording substantially

             as good as the original.



19.35(1)(e)  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.



19.35(1)(em) If an authority receives a request to

             inspect or copy a record that is in

             handwritten form or a record that is in

             the form of a voice recording which the

             authority is required to withhold or from

             which the authority is required to delete

             information under section 19.36(8)(b)

             because the handwriting or the recorded

             voice would identify an informant, the

             authority shall provide to the requester,

             upon his or her request, a transcript of

             the record or the information contained in

             the record if the record or information is

             otherwise subject to public inspection and

             copying under this subsection.



19.35(1)(f)  Except as otherwise provided by law, any

             requester has a right to inspect any

             record not specified in paragraphs

             19.35(1)(b) to 19.35(1)(e) the form of

             which does not permit copying.



             If a requester requests permission to

             photograph the record, the authority

             having custody of the record may permit

             the requester to photograph the record.



             If a requester requests that a photograph

             of the record be provided, the authority

             shall provide a good quality photograph of

             the record.



19.35(1)(g)  Paragraphs 19.35(1)(a) to 19.35(1)(c),

             19.35(1)(e) and 19.35(1)(f) do not apply

             to a record which has been or will be

             promptly published with copies offered

             for sale or distribution.



19.35(1)(h)  A request under paragraphs 19.35(1)(a) to

             19.35(1)(f) is deemed sufficient if it

             reasonably describes the requested record

             or the information requested.



             However, a request for a record without a

             reasonable limitation as to subject matter

             or length of time represented by the

             record does not constitute a

             sufficient request.



             A request may be made orally, but a

             request must be in writing before an

             action to enforce the request is

             commenced under section 19.37.



19.35(1)(i)  Except as authorized under this paragraph,

             no request under paragraphs 19.35(1)(a)

             and 19.35(1)(b) to 19.35(1)(f) may be

             refused because the person making the

             request is unwilling to be identified

             or to state the purpose of the request.



             Except as authorized under this paragraph,

             no request under paragraphs 19.35(1)(a)

             to 19.35(1)(f) may be refused because

             the request is received by mail, unless

             prepayment of a fee is required under

             subsection 19.35(1)(3)(f).



             A requester may be required to show

             acceptable identification whenever the

             requested record is kept at a private

             residence or whenever security reasons or

             federal law or regulations so require.



19.35(1)(j)  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.



19.35(1)(k)  Notwithstanding paragraphs 19.35(1)(a),

             19.35(1)(am), 19.35(1)(b) and 19.35(1)(f),

             a legal custodian may impose reasonable

             restrictions on the manner of access to

             an original record if the record is

             irreplaceable or easily damaged.



19.35(1)(L)  Except as necessary to comply with

             paragraphs 19.35(1)(c) to 19.35(1)(e) or

             section 19.36(6), this subsection does not

             require an authority to create a new

             record by extracting information from

             existing records and compiling the

             information in a new format.





19.35(2)     FACILITIES.



             The authority shall provide any person who

             is authorized to inspect or copy a record

             under subsection 19.35(1)(a),

             19.35(1)(am), 19.35(1)(b) or 19.35(1)(f)

             with facilities comparable to those used

             by its employes to inspect, copy and

             abstract the record during

             established office hours.



             An authority is not required by this

             subsection to purchase or lease

             photocopying, duplicating, photographic or

             other equipment or to provide a separate

             room for the inspection, copying or

             abstracting of records.



19.35(3)     FEES.



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)(b)  Except as otherwise provided by law or as

             authorized to be prescribed by law an

             authority may impose a fee upon the

             requester of a copy of a record that does

             not exceed the actual, necessary and

             direct cost of photographing and

             photographic processing if the authority

             provides a photograph of a record, the

             form of which does not permit copying.



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.



19.35(3)(d)  An authority may impose a fee upon a

             requester for the actual, necessary

             and direct cost of mailing or shipping

             of any copy or photograph of a record

             which is mailed or shipped to the

             requester.



19.35(3)(e)  An authority may provide copies of a

             record without charge or at a reduced

             charge where the authority determines

             that waiver or reduction of the fee

             is in the public interest.



19.35(3)(f)  An authority may require prepayment by a

             requester of any fee or fees imposed

             under this subsection if the total

             amount exceeds $5.



19.35(4)     TIME FOR COMPLIANCE AND PROCEDURES.



19.35(4)(a)  Each authority, upon request for any

             record, shall, as soon as practicable and

             without delay, either fill the request or

             notify the requester of the authority's

             determination to deny the request in whole

             or in part and the reasons therefor.



19.35(4)(b)  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 5 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 by mandamus under

             section 19.37(1) or upon application

             to the attorney general or

             a district attorney.



19.35(4)(c)  If an authority receives a request under

             subsection 19.35(1)(a) or 19.35(1)(am)

             from an individual or person authorized by

             the individual who identifies himself or

             herself and states that the purpose of the

             request is to inspect or copy a record

             containing personally identifiable

             information pertaining to the individual

             that is maintained by the authority, the

             authority shall deny or grant the request

             in accordance with the following

             procedure:

             

19.35(4)(c)  1.  The authority shall first determine

                 if the requester has a right to

                 inspect or copy the record

                 under subsection 19.35(1)(a).



19.35(4)(c)  2.  If the authority determines that the

                 requester has a right to inspect or

                 copy the record under subsection

                 19.35(1)(a), the authority shall

                 grant the request.



19.35(4)(c)  3.  If the authority determines that the

                 requester does not have a right to

                 inspect or copy the record under

                 subsection 19.35(1)(a), the authority

                 shall then determine if the requester

                 has a right to inspect or copy the

                 record under subsection 19.35(1)(am)

                 and grant or deny the request

                 accordingly.



19.35(5) RECORD DESTRUCTION.



         No authority may destroy any record at any

         time after the receipt of a request for

         inspection or copying of the record under

         subsection 19.35(1) until after the request

         is granted or until at least 60 days after

         the date that the request is denied



         or,



         if the requester is an incarcerated person,

         until at least 90 days after the date

         that the request is denied.



         If an authority receives written notice that

         an action relating to a record has been

         commenced under section 19.37, the record may

         not be destroyed until after the order of the

         court in relation to such record is issued and

         the deadline for appealing that order has

         passed, or, if appealed, until after the order

         of the court hearing the appeal is issued.



         If the court orders the production of any

         record and the order is not appealed, the

         record may not be destroyed until after the

         request for inspection or copying is granted.



19.35(6) ELECTED OFFICIAL RESPONSIBILITIES.



         No elected official is responsible for the

         record of any other elected official

         unless he or she has possession

         of the record of that

         other official.



History:  1981 c. 335, 391;

          1991 a. 39,

          1991 a. 269 ss. 34am, 40am;

          1993 a. 93;

          1995 a. 77, 158.



See note to section 59.20, citing

State ex rel. Bilder v. Delavan Tp.

112 Wis.2d 539,

334 N.W.2d 252 (1983).



Although meeting was properly closed, in order to

refuse inspection of meeting records custodian was

required by  19.35(1)(a) to state specific and

sufficient public policy reasons why public interest in

nondisclosure outweighed public's right of inspection.

Oshkosh Northwestern Co. v. Oshkosh Library Bd.

125 Wis.2d 480,

373 N.W.2d 459 (Ct. App. 1985).



Public records germane to pending litigation were

available under this section even though discovery

cutoff deadline had passed.

State ex rel. Lank v. Rzentkowski,

141 Wis.2d 846,

416 N.W.2d 635 (Ct. App. 1987).



In determining whether trial court properly upheld

custodian's denial of access, appellate court will

inquire whether trial court made a factual

determination supported by record of whether documents

implicate secrecy interest, and, if so, whether secrecy

interest outweighs release interest.



Milwaukee Journal v. Call,

153 Wis.2d 313,

450 N.W.2d 515 (Ct. App. 1989).



That releasing records would reveal confidential

informant's identity was legally specific reason for

denial of records request; public interest in revealing

informant's identity outweighed public interest in

disclosure of records.



Mayfair Chrysler-Plymouth v. Baldarotta,

162 Wis.2d 142,

469 N.W.2d 638 (1991).



Recognized public policy interest in denying access to

police personnel files overrides presumption that

records should be released.

Village of Butler v. Cohen,

163 Wis.2d 819,

472 N.W.2d 579 (Ct. App. 1991).



Items subject to examination under 346.70(4)(f) may

not be withheld by prosecution under common law

rule that investigative material may be

withheld from criminal defendant.

State ex rel. Young v. Shaw,

165 Wis.2d 276, 477 N.W.2d 340 (Ct. App. 1991).



Prosecutor's files are exempt from

public access under common law.

State ex rel. Richards v. Foust,

165 Wis.2d 429, 477 N.W.2d 608 (1991).



Records relating to pending claims against state under

893.82 need not be disclosed under 19.35; records

of non-pending claims must be disclosed unless

an in camera inspection reveals attorney

client privilege would be violated.

George v. Record Custodian,

169 Wis.2d 573, 485 N.W.2d 460 (Ct. App. 1992).



Public records law confers no exemption as of right on

indigents from payment of fees under 19.35(3)(3).

George v. Record Custodian,

169 Wis.2d 573,

485 N.W.2d 460 (Ct. App. 1992).



The availability of records under the open records law

turns on the nature of the records and not the nature

of the custodian.

Woznicki v. Erickson,

192 Wis.2d 710,

531 N.W.2d 465 (Ct. App. 1995).



Denial of prisoner's information request regarding

illegal behavior by guards on the grounds that it could

compromise the guards' effectiveness and subject them

to harassment was insufficient.

State ex. rel. Ledford v. Turcotte,

195 Wis.2d 244,

536 N.W.2d 130 (Ct. App. 1995).



The amount of prepayment required for copies may be

based on a reasonable estimate.

State ex rel. Hill v. Zimmerman,

196 Wis.2d 419,

538 N.W.2d 608 (Ct. App. 1995).



The Foust decision does not automatically exempt all

records stored in a closed prosecutorial file.

The exemption is limited to material actually

pertaining to the prosecution.

Nichols v. Bennett,

199 Wis.2d 268,

544 N.W.2d 428 (1996).



There is no blanket exception under the open records

law for public employe disciplinary or personnel

records. There must be a balancing of interests

on a case by case basis.



Wisconsin Newspapers, Inc.

v. School District of Sheboygan Falls,

199 Wis.2d 769 [199 Wis.2d 768],

546 N.W.2d 143 (1996).



Custodian may not require requester to pay cost of

unrequested certification. Unless fee for copies of

records is established by law, custodian may not charge

more than actual and direct cost of reproduction.

72 Atty. Gen. 36.



Copying fee but not location fee may be imposed

on requester for cost of computer run.

72 Atty. Gen. 68.



Fee for copying public records discussed.

72 Atty. Gen. 150.



Public records relating to employe grievances are not

generally exempt from disclosure. Nondisclosure

must be justified on case-by-case basis.

73 Atty. Gen. 20.



Disclosure of employe's birth date, sex, ethnic

heritage and handicapped status discussed.

73 Atty. Gen. 26.



Department of regulation and licensing may refuse to

disclose records relating to complaints against health

care professionals while the matters are merely "under

investigation"; good faith disclosure of same will not

expose custodian to liability for damages; prospective

continuing requests for records are not contemplated by

public records law.

73 Atty. Gen. 37.



Prosecutors' case files are exempt from disclosure.

74 Atty. Gen. 4.



Relationship between public records law and pledges of

confidentiality in settlement agreements discussed.

74 Atty. Gen. 14.



See note to 146.50, citing 78 Atty. Gen. 71.



Department of Regulation and Licensing test scores were

subject to disclosure under the open records law.

Munroe v. Braatz,

201 Wis.2d 442,

549 N.W.2d 452 (Ct. App. 1996).



Subsection 19.35(1)(i) and 19.35(3)(f) did not permit

a demand for prepayment of $1.29 in response

to a mail request for a record.

Borzych v. Paluszcyk,

201 Wis.2d 523,

549 N.W.2d 253 (Ct. App. 1996).



Personal records in the hands of an authority are not

exempt from the open records law.



The custodian of the records must consider all relevant

factors, balancing public and private interests, in

determining whether the records should be released.



The individual whose personal interests are implicated

by the potential release of the records may intervene

and seek circuit court review of a decision to release

the records.

Woznicki v. Erickson,

202 Wis.2d 178,

549 N.W.2d 699 (1996).



19.36 Limitations upon access and withholding.



19.36(1)  APPLICATION OF OTHER LAWS.



          Any record which is specifically exempted

          from disclosure by state or federal law or

          authorized to be exempted from disclosure by

          state law is exempt from disclosure under

          section 19.35(1), except that any portion of

          that record which contains public information

          is open to public inspection as provided in

          subsection 19.36(6).



19.36(2)  LAW ENFORCEMENT RECORDS.



          Except as otherwise provided by law, whenever

          federal law or regulations require or as a

          condition to receipt of aids by this state

          require that any record relating to

          investigative information obtained for law

          enforcement purposes be withheld from public

          access, then that information is exempt from

          disclosure under section 19.35(1).

          

19.36(3)  CONTRACTORS' RECORDS.



          Each authority shall make available for

          inspection and copying under section 19.35(1)

          any record produced or collected under a

          contract entered into by the authority with a

          person other than an authority to the same

          extent as if the record were maintained by

          the authority.



          This subsection does not apply to the

          inspection or copying of a record

          under section 19.35(1)(am).



19.36(4)  COMPUTER PROGRAMS AND DATA.



          A computer program, as defined in section

          16.971(4)(c), is not subject to examination

          or copying under section 19.35(1), but the

          material used as input for a computer program

          or the material produced as a product of the

          computer program is subject to the right of

          examination and copying, except as otherwise

          provided in section 19.35 or this section.



          19.36(5) TRADE SECRETS. An authority may

          withhold access to any record or portion

          of a record containing information

          qualifying as a trade secret as

          defined in section 134.90(1)(c).



19.36(6)  SEPARATION OF INFORMATION.

          If a record contains information that

          is subject to disclosure under section

          19.35(1)(a) or(am) and information that is

          not subject to such disclosure, the authority

          having custody of the record shall provide

          the information that is subject to disclosure

          and delete the information that is not

          subject to disclosure from the record before

          release.



19.36(7) IDENTITIES OF APPLICANTS FOR PUBLIC POSITIONS.



19.36(7)(a) In this section, "final candidate" means

            each applicant for a position who is

            seriously considered for appointment or

            whose name is certified for appointment

            and whose name is submitted for final

            consideration to an authority for

            appointment to any state position, except a

            position in the classified service, or to

            any local public office, as defined in

            section 19.42(7w).



            "Final candidate"

            includes, whenever there are at least 5

            candidates for an office or position, each

            of the 5 candidates who are considered most

            qualified for the office or position by an

            authority, and whenever there are less than

            5 candidates for an office or position,

            each such candidate.



            Whenever an appointment is to be made from

            a group of more than 5 candidates,

            "final candidate" also includes

            each candidate in the group.



19.36(7)(b) Every applicant for a position with any

            authority may indicate in writing to the

            authority that the applicant does not

            wish the authority to reveal his

            or her identity.



            Except with respect to an applicant whose

            name is certified for appointment to a

            position in the state classified service or

            a final candidate, if an applicant makes

            such an indication in writing, the

            authority shall not provide access to any

            record related to the application that may

            reveal the identity of the applicant.



19.36(8)    IDENTITIES OF LAW ENFORCEMENT INFORMANTS.



19.36(8)(a) In this subsection:



19.36(8)(a)1.   "Informant" means an individual who

                requests confidentiality from a law

                enforcement agency in conjunction with

                providing information to that agency

                or, pursuant to an express promise of

                confidentiality by a law enforcement

                agency or under circumstances in which

                a promise of confidentiality would

                reasonably be implied, provides

                information to a law enforcement agency

                or, is working with a law enforcement

                agency to obtain information, related

                in any case to any of the following:



19.36(8)(a)1.a. Another person who the individual

                or the law enforcement agency

                suspects has violated, is violating

                or will violate a federal law, a law

                of any state or an ordinance of any

                local government.



19.36(8)(a)1.b. Past, present or future activities that

                the individual or law enforcement

                agency believes may violate a federal

                law, a law of any state or an ordinance

                of any local government.



19.36(8)(a)2.   "Law enforcement agency" has the

                meaning given in section 165.83(1)(b),

                and includes the department

                of corrections.



19.36(8)(b) If an authority that is a law enforcement

            agency receives a request to inspect or

            copy a record or portion of a record under

            section 19.35(1)(a) that contains specific

            information including but not limited to a

            name, address, telephone number, voice

            recording or handwriting sample which, if

            disclosed, would identify an informant, the

            authority shall delete the portion of the

            record in which the information is

            contained or, if no portion of the record

            can be inspected or copied without

            identifying the informant, shall withhold

            the record unless the legal custodian of

            the record, designated under section 19.33,

            makes a determination, at the time that the

            request is made, that the public interest

            in allowing a person to inspect, copy or

            receive a copy of such identifying

            information outweighs the harm done to the

            public interest by providing such access.



19.36(9)    RECORDS OF PLANS OR SPECIFICATIONS

            FOR STATE BUILDINGS.



            Records containing plans or specifications

            for any state-owned or state-leased

            building, structure or facility or any

            proposed state-owned or state-leased

            building, structure or facility are not

            subject to the right of inspection or

            copying under section 19.35(1) except

            as the department of administration

            otherwise provides by rule.



            History: 1981 c. 335; 1985 a. 236;

                     1991 a. 39, 269, 317;

                     1993 a. 93; 1995 a. 27.



            Separation costs must be borne by agency.

            72 Atty. Gen. 99.



Computerized compilation of bibliographic records

discussed in relation to copyright law; requester is

entitled to copy of computer tape or printout of

information on tape. 75 Atty. Gen. 133 (1986).



Federal exemption was not incorporated under 19.35(1).

77 Atty. Gen. 20.



Subsection 19.35(7) is an exception to the public

records law and should be narrowly construed.



In subsection 19.35(7) "applicant" and "candidate" are

synonymous. "Final candidates" are the five most

qualified unless there are less than five applicants in

which case all are final candidates. 81 Atty. Gen. 37.



Public access to law enforcement records.

Fitzgerald. 68 MLR 705 (1985).



19.365       Rights of data subject to challenge;

             authority corrections.



19.365(1)    Except as provided under subsection

             19.36(2), an individual or person

             authorized by the individual may challenge

             the accuracy of a record containing



             personally identifiable information

             pertaining to the individual that

             is maintained by an authority if the

             individual is authorized to inspect the

             record under section 19.35(1)(a) or (am)

             and the individual notifies the authority,

             in writing, of the challenge.



             After receiving the notice, the authority

             shall do one of the following:



19.365(1)(a) Concur with the challenge and correct the

             information.



19.365(1)(b) Deny the challenge, notify the individual

             or person authorized by the individual of

             the denial and allow the individual or

             person authorized by the individual to

             file a concise statement setting forth

             the reasons for the individual's

             disagreement with the disputed

             portion of the record.



             A state authority that denies a challenge

             shall also notify the individual or person

             authorized by the individual of the

             reasons for the denial.



19.365(2)    This section does not apply to any

             of the following records:



19.365(2)(a) Any record transferred to an archival

             depository under section 16.61(13).



19.365(2)(b) Any record pertaining to an individual if

             a specific state statute or federal law

             governs challenges to the accuracy of



             the record.



History: 1991 a. 269 ss. 27d, 27e, 35am, 37am, 39am.



19.37        Enforcement and penalties.



19.37(1)     MANDAMUS.



             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).



19.37(1)(a)  The requester may bring an action for

             mandamus asking a court to order

             release of the record.



             The court may permit the parties or their

             attorneys to have access to the requested

             record under restrictions or protective

             orders as the court deems appropriate.



19.37(1)(b)  The requester may, in writing, request the

             district attorney of the county where the

             record is found, or request the attorney

             general, to bring an action for mandamus

             asking a court to order release of the

             record to the requester.



             The district attorney or attorney general

             may bring such an action.



19.37(1)(1m) TIME FOR COMMENCING ACTION.



             No action for mandamus under subsection

             19.37(1) to challenge the denial of a

             request for access to a record or part of

             a record may be commenced by any

             incarcerated person later than 90 days

             after the date that the request is denied

             by the authority having custody of the

             record or part of the record.



19.37(1)(1n) NOTICE OF CLAIM.



             Sections 893.80 and 893.82 do not apply to

             actions commenced under this section.



19.37(2)     COSTS, FEES AND DAMAGES.



19.37(2)(a)  Except as provided in this paragraph, 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

             subsection 19.37(1) relating to access to

             a record or part of a record under section

             19.35(1)(a).



             If the requester is an incarcerated

             person, the requester is not entitled to

             any minimum amount of damages, but the

             court may award damages.



             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(2)(b)  In any action filed under subsection

             19.37(1) relating to access to a record

             or part of a record under section

             19.35(1)(am), if the court finds that the

             authority acted in a wilful or intentional

             manner, the court shall award the

             individual actual damages sustained by the

             individual as a consequence of the

             failure.



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.



             History: 1981 c. 335, 391;

                      1991 a. 269 s. 43d; 1995 a. 158.



Party seeking fees under 19.37(2) must show that

prosecution of action could reasonably be regarded as

necessary to obtain information and that "causal nexus"

exists between that action and agency's surrender of

information.



State ex rel. Vaughan v. Faust,

143 Wis.2d 868,

422 N.W.2d 898 (Ct. App. 1988).



If agency exercises due diligence but is unable to

respond timely to records request, plaintiff must

show that mandamus action was necessary to

secure records release to qualify for

award of fees and costs under 19.37(2).

Racine Ed. Ass'n. v. Bd. of Ed.,

145 Wis.2d 518,

427 N.W.2d 414 (Ct. App. 1988).



Assuming 19.37(1)(a) applies before mandamus is issued,

trial court retains discretion to refuse counsel's

participation in camera inspection.

Milwaukee Journal v. Call,

153 Wis.2d 313,

450 N.W.2d 515 (Ct. App. 1989).



Where trial court has incomplete knowledge of contents

of public records sought, it must conduct in camera

inspection to determine what may be disclosed

following custodian's refusal.

State ex rel. Morke v. Donnelly,

155 Wis.2d 521,

455 N.W.2d 893 (1990).



Pro se litigant not entitled to attorney's fees.

State ex rel. Young v. Shaw,

165 Wis.2d 276,

477 N.W.2d 340 (Ct. App. 1991).



A favorable judgment or order is not a necessary

condition precedent to find that a party prevailed

against an agency under subsection 19.37(2);

a causal nexus must be shown between the

prosecution of the mandamus action and

the release of the requested information.

Eau Claire Press Co. v. Gordon,

176 Wis.2d 154,

499 N.W.2d 918 (Ct. App. 1993).



Actual damages are liability of agency. Punitive

damages and forfeitures can be liability of

either agency or legal custodian or both.



Section 895.46(1)(a) probably provides indemnification

for punitive damages assessed against custodian

but not for forfeitures.

72 Atty. Gen. 99.



Actions brought under the open meetings and open

records laws are exempt from the notice

provisions of subsection 19.37(1).



Auchinleck v. Town of LaGrange,

200 Wis.2d 585,

547 N.W.2d 587 (1996).



19.39 Interpretation by attorney general.



Any person may request advice from the attorney general

as to the applicability of this subchapter

under any circumstances.



The attorney general may respond to such a request.



History: 1981 c. 335.