STATE EX REL. BORZYCH v. PALUSZCYK,
201 Wis.2d 523 (Ct.App. 1996)
549 N.W.2d 253






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STATE of Wisconsin EX REL. Garry A. BORZYCH, Petitioner-Appellant, v. Gary PALUSZCYK, Respondent-Respondent. _________________________________________________________________ Court of Appeals # 95-1711 Submitted on briefs March 1, 1996 Decided April 3, 1996
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APPEAL from a judgment of the circuit court for

Waukesha County:



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

counsel.



Before Anderson, P.J., Brown and Nettesheim, JJ.



ANDERSON, P.J.



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.
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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.
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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

                    so require.



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.



In Coalition,

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."
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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."



(Emphasis added.)



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.
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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.



Coalition,

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.
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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






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