STATE EX REL. BORZYCH v. PALUSZCYK,
201 Wis.2d 523 (Ct.App. 1996)
549 N.W.2d 253
STATE of Wisconsin EX REL. Garry A. BORZYCH,
Gary PALUSZCYK, Respondent-Respondent.
Court of Appeals # 95-1711
Submitted on briefs March 1, 1996
Decided April 3, 1996
APPEAL from a judgment of the circuit court for
ROGER P. MURPHY, Judge. Reversed.
On behalf of the petitioner-appellant, the cause
was submitted on the brief of Garry Borzych, pro se.
On behalf of the respondent-respondent, the cause was submitted
on the brief of Steven Schmitz, principal assistant corporation
Before Anderson, P.J., Brown and Nettesheim, JJ.
Garry A. Borzych appeals from a judgment of the trial court where
the court granted summary judgment in favor of Gary Paluszcyk.
We conclude that Paluszcyk did not follow the dictates of
Sections 19.35(1)(i) and (3)(f), STATS., when he required
Borzych to prepay $1.29 for a records request.
Accordingly, we reverse the judgment of the trial court.
Borzych filed a petition for a writ of mandamus requesting
that Paluszcyk, an inspector with the Waukesha County Sheriff's
Department, be required to "perform his public duty to comply
with the petitioner's request for public records."
According to the writ, Borzych submitted a written request
to the sheriff's department for a mug shot of Robert Goglio.
The mug shot was a "record" within the meaning of
Section 19.32(2), STATS.
Paluszcyk responded to Borzych's request in writing, stating:
"The mug shot is available for you to view at the Records
Section of the Waukesha County Sheriff's Office, or remit
$1.29 to the following address, and we will mail it to you."
Borzych did not send the prepayment, and consequently,
Paluszcyk did not send the requested material.
The writ of mandamus followed.
The application of the public records law to the facts of this
case presents a question of law which we review de novo.
See Coalition for a Clean Gov't v. Larsen,
166 Wis.2d 159, 163,
479 N.W.2d 576, 577 (Ct.App. 1991).
The trial court granted Paluszcyk's motion for summary judgment.
In reviewing summary judgment determinations, we apply
the same standards as the trial court.
Posyniak v. School Sisters of St. Francis,
180 Wis.2d 619, 627,
511 N.W.2d 300, 304 (Ct. App. 1993).
A summary judgment motion shall be granted
"if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."
Section 802.08(2), STATS.
Borzych cites Sections 19.35(1)(i) and (3)(f), STATS., arguing
that he "cannot be denied access to a record because [his]
request was made by mail, and cannot be required to prepay
the sum of $1.29 before receiving said records."
In contrast, Paluszcyk contends that Wisconsin's public
records law does not require a record custodian to
mail a public record to a requester.
According to Paluszcyk, the custodian of records has
the option of filling a request for a public record
by making the record available for copying by
the equester during office hours.
He states that he "responded to a request that legally did not
have to be honored by asking for a quid pro quo:
"We'll copy and mail, but please pay in advance."
Section 19.35, STATS., governs access to records under
Chapter 19, STATS., "General Duties of Public Officials."
Section 19.35(1)(i) provides:
19.35(1)(i) Except as authorized under this paragraph,
no request under paragraphs 19.35(1)(a)
and (b) to (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 (f)
may be refused because the
request is received by mail,
unless prepayment of a fee
is required under 19.35(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
Section 19.35(3)(f) provides:
An authority may require prepayment by a requester
of any fee or fees imposed under this subsection
if the total amount exceeds $5.
166 Wis.2d at 161,
479 N.W.2d at 577,
the court addressed the issue of whether
the public records law required the custodian to
copy a public record and mail the copy to the requester.
The court said that the law did not require it and that the
custodian had the option of filling the requester's request
by mail or by requiring the requester to do his own
copy work in the custodian's office.
Id. at 165, 479 N.W.2d at 578.
"[T]he records custodian may elect to provide the requester
with a copy of the requested record or permit the requester
to photocopy the record."
Id. (emphasis added); see Section 19.35(1)(b), STATS.
Coalition, however, does not apply to the present case.
At the time that Coalition was written,
Section 19.35(1)(b), STATS., provided:
"If a requester requests a copy of the 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."
1991 Wis. Act 269, Section 26sm, amended
Section 19.35(1)(b) to provide:
"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."
The legislature significantly changed the statute so that the
choice articulated in Coalition, either to
(1) permit the requester to photocopy the record, or
(2) provide the requester with a copy substantially
as readable as the original, is not available
when a requester requests material by mail.
Here, Paluszcyk did not have the ability to make an election.
By statute, he was required to photocopy
and send the material requested.
Section 19.35(3)(f), STATS., clearly states that a custodian may
only request prepayment if the amount exceeds five dollars.
In Borzych's case, the amount was under five dollars; thus,
Paluszcyk violated the statute by requesting prepayment.
Because Paluszcyk did not follow the dictates of the statute,
we must reverse.
By the Court. Ä Judgment reversed.
NETTESHEIM, J. (concurring).
I concur with the majority opinion.
I write separately to express my opinion that the language of
Coalition for a Clean Gov't v. Larsen,
166 Wis.2d 159,
479 N.W.2d 576 (Ct. App. 1991), sweeps too broadly.
Fortunately, the 1991 change in Section 19.35(1)(b), STATS.,
although apparently not in response to the Coalition holding,
affords the opportunity to avoid the application of
Coalition to this and future similar cases.
See 1991 Wis. Act 269, Section 26sm.
As the majority observes, Coalition holds that
a record custodian has the option to either:
(1) provide the requester with a readable
copy of the record, or
(2) allow the requester to photocopy the record.
166 Wis.2d at 165,
479 N.W.2d at 578.
Stated differently, the custodian has no obligation to
mail or ship the record to the requester.[fn1]
I disagree with the breadth of the Coalition language.
Unlike the requester in Coalition, here, Borzych is incarcerated.
As such, he obviously has no present means of personally
appearing before the custodian to obtain the public record.
Thus, absent the assistance of a third party, Borzych's only
means of obtaining the record is via the mails or other form
of shipping by the custodian Ä an option which the custodian
may withhold under Coalition.
Thus, the Coalition rule would deny many prisoners access
to public records under the open records law.
This might not dismay public records custodians who are often
required to respond to frivolous open records requests from
prisoners; nor would it dismay those lawyers and judges
who are called upon to litigate these requests.
But the Coalition language is so broad that it also
covers other persons who are physically unable to appear
before the custodian and cannot obtain the assistance
of third parties to make such an appearance.
That approach flies directly in the face of the
declared policy of the open records law.
See Section 19.31, STATS.
As noted, we see many abuses of the open records law by prisoners
(a matter the legislature should perhaps address).
However, I do not agree with the substantial curtailment of the
open records law allowed by the broad Coalition language,
whether or not consciously framed.
As noted by the majority opinion, the legislative change to
Section 19.35(1)(b), STATS., now limits the Coalition rule to
only those instances in which the requester appears personally
before the custodian.
The legislative history regarding this amendment does not
reveal whether it was prompted by the Coalition decision.
Nonetheless, the amendment fortunately eliminates
the potential damage of the Coalition holding.
[fn1] As the majority correctly observes,
under the current statute these same
options exist, but the statute applies
only when the
"requester appears personally to
request a copy of a record."
Section 19.35(1)(b), STATS.
END OF DECISION