COALITION FOR CLEAN GOVERNMENT v. LARSEN,

166 Wis.2d 159 (Ct.App. 1991)

479 N.W.2d 576




COALITION FOR a CLEAN GOVERNMENT, Dennis Foerster, Plaintiff-Appellant,[fn] v. 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.

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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.



SUNDBY, J.



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.
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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.
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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.
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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

Foerster.



We disagree.



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

       requester. "
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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.



We agree.



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.
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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 . . . ."
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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.
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