COALITION FOR CLEAN GOVERNMENT v. LARSEN,
166 Wis.2d 159 (Ct.App. 1991)
479 N.W.2d 576
COALITION FOR a CLEAN GOVERNMENT,
James E. LARSEN,
City of Fox Lake, Defendants-Respondents.
Court of Appeals No. 90-2721.
Submitted on briefs June 6, 1991.
Decided December 12, 1991.
[fn] Petition to review denied.
APPEAL from a judgment of the circuit court
for Dodge county:
JOSEPH E. SCHULTZ, Judge. Affirmed.
For the plaintiff-appellant the cause was submitted on
the briefs of Dennis Foerster, pro se, of Newburg, on
behalf of the Coalition for a Clean Government.
For the defendants-respondents the cause was submitted
on the brief of Kathryn L. Ryan of Kasdorf,
Lewis & Swietlik, S.C. of Milwaukee.
Before Gartzke, P.J., Dykman and Sundby, JJ.
The Coalition for a Clean Government appeals from a
judgment dismissing its mandamus action under
Section 19.37(1), Stats., against the City of
Fox Lake and its police chief, James E. Larsen.
The Coalition seeks to compel Larsen, as the legal
custodian of traffic citations in the police
department, to mail its agent, Dennis Foerster,
copies of certain citations.
We conclude that the Wisconsin Public Records Law
does not require the custodian to copy a public
record and mail the copy to the requester.
We therefore affirm the judgment.
On February 19, 1990, Dennis Foerster addressed a
to-whom-it-may-concern letter to the city requesting
the names and addresses of drivers who had been
issued certain traffic citations by the city
from January 1, 1989 to February 1990.
The city police had issued Foerster a
traffic citation during this period.
Foerster enclosed a check for $3 to pay copy charges.
Larsen returned Foerster's check the same day and
advised him that they did not have the "manpower"
to fulfill Foerster's request.
Larsen advised Foerster that he could appear
in court on the citation on March 12, 1990.
The next day, Foerster addressed a further
to-whom-it-may-concern request which modified
his request to cover the period from
January 1, 1989 to November 1, 1989.
Foerster again enclosed his check
to cover copy charges.
On February 23, 1990, Larsen returned Foerster's check
and advised him as follows:
" As per Section 19.35(1)(a), you may make an
appointment to view the records any Tuesday
of your choosing between 8:00 a.m and
12 noon and 1:00 p.m. to 4:00 p.m. "
On February 28, 1990, Foerster renewed his request
that Larsen produce the requested records.
He objected to travelling from his residence in Newburg
to Fox Lake to view the requested records.
When Larsen did not respond to Foerster's request,
the Coalition began this mandamus action.
Neither Larsen nor the city challenges Foerster's
assertion that he sought the requested public
records on behalf of the Coalition.
Larsen argues that he complied with the public
records law by making the records requested by
Foerster available for inspection and copying
during the department's office hours.
The Coalition contends that this interpretation
of the public records law negates Section 19.35(1)(i),
Stats., insofar as it permits requests
for public records by mail.
The Coalition argues that it would be pointless
to make a request by mail if the requester
could be forced to travel to the custodian's
office to inspect and copy the records.
The facts are undisputed.
The application of the public records law to
undisputed facts presents a question of law,
which we decide de novo.
Wisconsin State Journal v.
University of Wisconsin-Platteville,
160 Wis.2d 31, 36,
465 N.W.2d 266, 268 (Ct. App. 1990).
Traffic citations are public records subject
to public records inspection statutes.
Beckon v. Emery,
36 Wis.2d 510, 515-16,
153 N.W.2d 501, 503 (1967).
The right to inspect public records is,
however, not absolute, but is presumptive.
In re Zimmer,
151 Wis.2d 122, 131,
442 N.W.2d 578, 582 (Ct. App. 1989)
(citing Hathaway v. Green Bay School Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682, 687 (1984)).
Section 19.35(1)(a), Stats., provides in part:
" . .Except as otherwise provided by law, any
requester has a right to inspect any record. "
Section 19.35(1)(b) provides:
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 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.
The police department of the city is an "authority,"
as defined in Section 19.32(1), Stats. Larsen, as
the department's highest ranking officer and
chief administrative officer, is the legal
custodian of the department's records.
Section 19.33(4), Stats.
The Coalition contends that Larsen was required to
state specific public policy reasons for denying
Foerster access to the traffic citations.
It argues that under Section 19.35(4), Stats.,
Larsen could either fill Foerster's request or
notify Foerster that he denied Foerster's
request and the reasons therefor.
The Coalition asserts that Larsen's offer to allow
Foerster to inspect the citations at his office
was not a sufficient public policy reason
for denying Foerster's request.
We conclude that Larsen was not required to state
a public policy reason for his limitation on the
times when Foerster could inspect the traffic
citations filed in Larsen's office.
Larsen's limitation was procedural, not substantive.
Section 19.34(2), Stats., prescribes when the
authority having custody of public records
shall permit access to those records.
The Coalition does not claim that Larsen violated
Section 19.34(2) by limiting Foerster's right to
inspect to "any Tuesday of your choosing"
during prescribed hours.
It argues that Foerster could not be required to come
to Larsen's office, but had an absolute right to have
the citations copied by Larsen's office and mailed to
The Coalition contends that Section 19.35(1)(i),
Stats., gives a requester the right to request
a public record by mail and to receive copies
of public records in the same manner.
Section 19.35(1)(i) provides in part that
" no request under paragraphs (a) to (f)
may be refused because the request is
received by mail, unless prepayment
of a fee is required . . ."
The Coalition also argues that Larsen's interpretation
of the public records law would render surplusage
Section 19.35(3)(d), Stats., which provides:
" 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
Larsen concedes that Foerster could request
copies of the traffic citations by mail.
He claims, however, that he had the option of
filling Foerster's request by mail or by requiring
Foerster to do his own copy work in Larsen's office.
Foerster's request was made under
Section 19.35(1)(b), Stats.
As noted, Section 19.35(1)(b) provides that
" the authority having custody of the
requested 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. "
Thus, the records custodian may elect to provide
the requester with a copy of the requested record
or permit the requester to photocopy the record.
Our construction of Section 19.35(1)(b) is confirmed
by Section 19.35(2), Stats., which provides:
The authority shall provide any person who is
authorized to inspect or copy a record under
Subsection (1)(a), (b) or (f) with facilities
comparable to those used by its employee 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.
These provisions clearly and unambiguously give the
authority having custody of a requested public record
the option of filling a request for a public record by
making the requested record available for copying by
the requester during the authority's office hours.
Therefore, Larsen did not violate the public records
law when he failed to fill Foerster's request by
copying and mailing the citations to Foerster.
The Coalition also complains that Larsen did not
comply with Section 19.35(4), Stats., when he denied
Foerster's first request because of lack of "manpower."
We need not decide whether this was a valid reason to
deny Foerster's request. Foerster altered his records
request and Larsen did not persist in his refusal to
fill Foerster's request because of lack of personnel.
Therefore, Larsen's response to Foerster's initial
request became moot.
The Coalition also argues that Larsen waived his right
to rely on Section 19.35(1)(b), Stats., when in his
response of February 23, 1990, he stated that
Foerster could make an appointment to view
the records " as per Section 19.35(1)(a)."
We consider that Larsen's response of February 23,
1990, was not an attempt to deny Foerster's request
but was merely a recognition that under Section
19.35(1)(a), Foerster had a right to inspect
the requested records.
Section 19.35(1)(b) simply explains the
requester's right to inspect a record.
Larsen's response did not deny Foerster's right to
make or receive a copy of the requested citations.
The Coalition argues that it is not reasonable to
require someone living a considerable distance from
the custodian's office to appear personally at the
office to inspect and copy a public record.
This is an argument to be addressed to the legislature.
The legislature has concluded that custodians
are not required to do copy work for
requesters of public records.
The Coalition further argues that to adopt Larsen's
construction of the public records law would
undermine the public policy that a
requester may remain anonymous.
Section 19.35(1)(i), Stats, provides in part that
" no request under paragraphs 19.35(1)(i)(a)
to (f) may be refused because the person
making the request is unwilling
to be identified . . . ."
This provision does not negate the option which the
custodian has of requiring the requester to do the
copying of a requested public record.
The requester can inspect a public record and
copy it without identifying himself or
herself to the custodian.
We therefore reject the Coalition's argument.
We conclude that nothing in the public records law
requires the records custodian to provide the
requester with public records by mail.
The law is satisfied if the requester is given the
right to inspect and copy a public record.
By the Court. Judgment affirmed.