DOJ
Public Records Notes
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
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.
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;
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.
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.
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.
(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.
(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);
(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.
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.
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.
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.
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.
Visit www.gjs.net for a variety of other documents.
Comments on above hyperlinked file welcome. MAIL
Section 19.37(3) and (4), Stats.
980608AL
WI Statutes
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19
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II
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PUBLIC RECORDS AND PROPERTY
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Custody and delivery of
official property and records.
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Proceedings to compel the
delivery of official property.
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Transfer of records or materials
to historical society.
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Refusal to deliver money,
etc., to successor.
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State officers may require
searches, etc., without fees.
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Limitations upon access
and withholding.
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Rights of data subject to challenge;
authority corrections.
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Enforcement and penalties.
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Interpretation by attorney general.
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APPLICABLE
STATUTES TEXT:
SUBCHAPTER II PUBLIC RECORDS AND PROPERTY
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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 author |