Chapter 19

19.35(3)(c) (c) Except as otherwise provided by law or as authorized to be prescribed by law, an authority may impose a fee upon a requester for locating a record, not exceeding the actual, necessary and direct cost of location, if the cost is $50 or more.

19.35(3)(d) (d) 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.

19.35(3)(e) (e) An authority may provide copies of a record without charge or at a reduced charge where the authority determines that waiver or reduction of the fee is in the public interest.

19.35(3)(f) (f) An authority may require prepayment by a requester of any fee or fees imposed under this subsection if the total amount exceeds $5. If the requester is a prisoner, as defined in s. 301.01 (2), or is a person confined in a federal correctional institution located in this state, and he or she has failed to pay any fee that was imposed by the authority for a request made previously by that requester, the authority may require prepayment both of the amount owed for the previous request and the amount owed for the current request.

19.35(3)(g) (g) Notwithstanding par. (a), if a record is produced or collected by a person who is not an authority pursuant to a contract entered into by that person with an authority, the authorized fees for obtaining a copy of the record may not exceed the actual, necessary, and direct cost of reproduction or transcription of the record incurred by the person who makes the reproduction or transcription, unless a fee is otherwise established or authorized to be established by law.

19.35(3)(h) (h)

19.35(3)(h)1. 1. In this paragraph, “law enforcement agency” has the meaning given in s. 19.36 (8) (a) 2.

19.35(3)(h)2. 2. Subject to subds. 3. to 7., an authority that is a law enforcement agency may impose a fee upon a requester for the actual, necessary, and direct cost of redacting, whether by pixelization or other means, recorded audio or video content to the extent redaction is necessary to comply with applicable constitutional, statutory, or common law.

19.35(3)(h)3. 3. An authority may not impose the fee under subd. 2. with respect to a request for records containing audio or video content for which all of the following apply:

19.35(3)(h)3.a. a. If the requester is an individual, the requester provides written certification to the authority that the requester will not use the audio or video content for financial gain, not including an award of damages in a civil action. Any individual providing a false certification under this subd. 3. a. shall be subject to a forfeiture of $10,000 for each violation.

19.35(3)(h)3.b. b. During the calendar year in which the authority receives the request, the same requester has not made more than 10 requests to the authority for records containing audio or video content, including the current request but excluding any request subject to subd. 4. or 5.

19.35(3)(h)4. 4. An authority may not impose the fee under subd. 2. with respect to a request for records containing audio or video content if the requester is an individual directly involved in the event to which the requested records relate, that individual’s attorney or other authorized representative, or that individual’s parent or guardian if the individual is under the age of 18.

19.35(3)(h)5. 5. An authority may not impose the fee under subd. 2. with respect to a request for records containing audio or video content if the event to which the requested records relate is a shooting involving an officer of a law enforcement agency.

19.35(3)(h)6. 6. In calculating the fee imposed under subd. 2., the rate for an actual, necessary, and direct charge for staff time spent redacting shall be based on the pay rate of the authority’s lowest paid employee capable of performing the task.

19.35(3)(h)7. 7. An authority may not impose the fee under subd. 2. with respect to a request for records containing audio or video content unless prior to fulfilling the request the authority provides to the requester in writing an estimate of the amount of the fee to be charged.

19.35(4) (4) Time for compliance and procedures.

19.35(4)(a) (a) Each authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority’s determination to deny the request in whole or in part and the reasons therefor.

19.35(4)(b) (b) If a request is made orally, the authority may deny the request orally unless a demand for a written statement of the reasons denying the request is made by the requester within 5 business days of the oral denial. If an authority denies a written request in whole or in part, the requester shall receive from the authority a written statement of the reasons for denying the written request. Every written denial of a request by an authority shall inform the requester that if the request for the record was made in writing, then the determination is subject to review by mandamus under s. 19.37 (1) or upon application to the attorney general or a district attorney.

19.35(4)(c) (c) If an authority receives a request under sub. (1) (a) or (am) from an individual or person authorized by the individual who identifies himself or herself and states that the purpose of the request is to inspect or copy a record containing personally identifiable information pertaining to the individual that is maintained by the authority, the authority shall deny or grant the request in accordance with the following procedure:

19.35(4)(c)1. 1. The authority shall first determine if the requester has a right to inspect or copy the record under sub. (1) (a).

19.35(4)(c)2. 2. If the authority determines that the requester has a right to inspect or copy the record under sub. (1) (a), the authority shall grant the request.

19.35(4)(c)3. 3. If the authority determines that the requester does not have a right to inspect or copy the record under sub. (1) (a), the authority shall then determine if the requester has a right to inspect or copy the record under sub. (1) (am) and grant or deny the request accordingly.

19.35(5) (5) Record destruction. No authority may destroy any record at any time after the receipt of a request for inspection or copying of the record under sub. (1) until after the request is granted or until at least 60 days after the date that the request is denied or, if the requester is a committed or incarcerated person, until at least 90 days after the date that the request is denied. If an authority receives written notice that an action relating to a record has been commenced under s. 19.37, the record may not be destroyed until after the order of the court in relation to such record is issued and the deadline for appealing that order has passed, or, if appealed, until after the order of the court hearing the appeal is issued. If the court orders the production of any record and the order is not appealed, the record may not be destroyed until after the request for inspection or copying is granted.

19.35(6) (6) Elective official responsibilities. No elective official is responsible for the record of any other elective official unless he or she has possession of the record of that other official.

19.35(7) (7) Local information technology authority responsibility for law enforcement records.

19.35(7)(a) (a) In this subsection:

19.35(7)(a)1. 1. “Law enforcement agency” has the meaning given s. 165.83 (1) (b).

19.35(7)(a)2. 2. “Law enforcement record” means a record that is created or received by a law enforcement agency and that relates to an investigation conducted by a law enforcement agency or a request for a law enforcement agency to provide law enforcement services.

19.35(7)(a)3. 3. “Local information technology authority” means a local public office or local governmental unit whose primary function is information storage, information technology processing, or other information technology usage.

19.35(7)(b) (b) For purposes of requests for access to records under sub. (1), a local information technology authority that has custody of a law enforcement record for the primary purpose of information storage, information technology processing, or other information technology usage is not the legal custodian of the record. For such purposes, the legal custodian of a law enforcement record is the authority for which the record is stored, processed, or otherwise used.

19.35(7)(c) (c) A local information technology authority that receives a request under sub. (1) for access to information in a law enforcement record shall deny any portion of the request that relates to information in a local law enforcement record.

19.35 History History: 1981 c. 335, 391; 1991 a. 39, 1991 a. 269 ss. 34am, 40am; 1993 a. 93; 1995 a. 77, 158; 1997 a. 94, 133; 1999 a. 9; 2001 a. 16; 2005 a. 344; 2009 a. 259, 370; 2013 a. 171; 2015 a. 356; 2023 a. 253.

19.35 Note NOTE: The following annotations relate to public records statutes in effect prior to the creation of s. 19.35 by ch. 335, laws of 1981.

19.35 Annotation A mandamus petition to inspect a county hospital’s statistical, administrative, and other records not identifiable with individual patients states a cause of action under this section. State ex rel. Dalton v. Mundy, 80 Wis. 2d 190, 257 N.W.2d 877 (1977).

19.35 Annotation Police daily arrest lists must be open for public inspection. Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979).

19.35 Annotation This section is a statement of the common law rule that public records are open to public inspection subject to common law limitations. Section 59.14 [now s. 59.20 (3)] is a legislative declaration granting persons who come under its coverage an absolute right of inspection subject only to reasonable administrative regulations. State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983).

19.35 Annotation A newspaper had the right to intervene to protect its right to examine sealed court files. State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983).

19.35 Annotation Examination of birth records cannot be denied simply because the examiner has a commercial purpose. 58 Atty. Gen. 67.

19.35 Annotation Consideration of a resolution is a formal action of an administrative or minor governing body. When taken in a proper closed session, the resolution and result of the vote must be made available for public inspection absent a specific showing that the public interest would be adversely affected. 60 Atty. Gen. 9.

19.35 Annotation Inspection of public records obtained under official pledges of confidentiality may be denied if: 1) a clear pledge has been made in order to obtain the information; 2) the pledge was necessary to obtain the information; and 3) the custodian determines that the harm to the public interest resulting from inspection would outweigh the public interest in full access to public records. The custodian must permit inspection of information submitted under an official pledge of confidentiality if the official or agency had specific statutory authority to require its submission. 60 Atty. Gen. 284.

19.35 Annotation Discussing the right to inspection and copying of public records in decentralized offices. 61 Atty. Gen. 12.

19.35 Annotation Public records subject to inspection and copying by any person would include a list of students awaiting a particular program in a VTAE [technical college] district school. 61 Atty. Gen. 297.

19.35 Annotation 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 if valid reasons for denial exist and are specially stated. 61 Atty. Gen. 361.

19.35 Annotation 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.

19.35 Annotation The Department of Administration probably has authority under former s. 19.21 (1) and (2), 1973 stats., to provide a private corporation with camera-ready copy of session laws that is the product of a printout of computer stored public records if the costs are minimal. The state cannot contract on a continuing basis for the furnishing of this service. 63 Atty. Gen. 302.

19.35 Annotation Discussing the scope of the duty of the governor to allow members of the public to examine and copy public records in the governor’s custody. 63 Atty. Gen. 400.

19.35 Annotation Discussing the public’s right to inspect land acquisition files of the Department of Natural Resources. 63 Atty. Gen. 573.

19.35 Annotation Financial statements filed in connection with applications for motor vehicle dealers’ and motor vehicle salvage dealers’ licenses are public records, subject to limitations. 66 Atty. Gen. 302.

19.35 Annotation Sheriff’s radio logs, intradepartmental documents kept by the sheriff, and blood test records of deceased automobile drivers in the hands of the sheriff are public records, subject to limitations. 67 Atty. Gen. 12.

19.35 Annotation Plans and specifications filed under s. 101.12 are public records and are available for public inspection. 67 Atty. Gen. 214.

19.35 Annotation Under s. 19.21 (1), district attorneys must indefinitely preserve papers of a documentary nature evidencing activities of a prosecutor’s office. 68 Atty. Gen. 17.

19.35 Annotation Discussing the right to examine and copy computer-stored information. 68 Atty. Gen. 231.

19.35 Annotation After the transcript of court proceedings is filed with the clerk of court, any person may examine or copy the transcript. 68 Atty. Gen. 313.

19.35 Note NOTE: The following annotations relate to this section.

19.35 Annotation Although a meeting was properly closed, in order to refuse inspection of records of the meeting, the custodian was required by sub. (1) (a) to state specific and sufficient public policy reasons why the public’s interest in nondisclosure outweighed the right of inspection. Oshkosh Northwestern Co. v. Oshkosh Library Board, 125 Wis. 2d 480, 373 N.W.2d 459 (Ct. App. 1985).

19.35 Annotation Courts must apply the open records balancing test to questions involving disclosure of court records. The public interests favoring secrecy must outweigh those favoring disclosure. C.L. v. Edson, 140 Wis. 2d 168, 409 N.W.2d 417 (Ct. App. 1987).

19.35 Annotation Public records germane to pending litigation were available under this section even though the discovery cutoff deadline had passed. State ex rel. Lank v. Rzentkowski, 141 Wis. 2d 846, 416 N.W.2d 635 (Ct. App. 1987).

19.35 Annotation To uphold a custodian’s denial of access, an appellate court will inquire whether the trial court made a factual determination supported by the record of whether documents implicate a secrecy interest and, if so, whether the secrecy interest outweighs the interests favoring release. Milwaukee Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Ct. App. 1989).

19.35 Annotation That releasing records would reveal a confidential informant’s identity was a legally specific reason for denial of a records request. The public interest in not revealing the informant’s identity outweighed the public interest in disclosure of the records. Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis. 2d 142, 469 N.W.2d 638 (1991).

19.35 Annotation Items subject to examination under s. 346.70 (4) (f) may not be withheld by the prosecution under a common law rule that investigative material may be withheld from a criminal defendant. State ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991).

19.35 Annotation Prosecutors’ files are exempt from public access under the common law. State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991).

19.35 Annotation Records relating to pending claims against the state under s. 893.82 need not be disclosed under this section. Records of non-pending claims must be disclosed unless an in camera inspection reveals that the attorney-client privilege would be violated. George v. Record Custodian, 169 Wis. 2d 573, 485 N.W.2d 460 (Ct. App. 1992).

19.35 Annotation The public records law confers no exemption as of right on indigents from payment of fees under sub. (3). George v. Record Custodian, 169 Wis. 2d 573, 485 N.W.2d 460 (Ct. App. 1992).

19.35 Annotation The denial of a prisoner’s information request regarding illegal behavior by guards on the grounds that it could compromise the guards’ effectiveness and subject them to harassment was insufficient. State ex rel. Ledford v. Turcotte, 195 Wis. 2d 244, 536 N.W.2d 130 (Ct. App. 1995), 94-2710.

19.35 Annotation The amount of prepayment required for copies may be based on a reasonable estimate. State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419, 538 N.W.2d 608 (Ct. App. 1995), 94-1861.

19.35 Annotation The Foust, 165 Wis. 2d 429 (1991), decision does not automatically exempt all records stored in a closed prosecutorial file. The exemption is limited to material actually pertaining to the prosecution. Nichols v. Bennett, 199 Wis. 2d 268, 544 N.W.2d 428 (1996), 93-2480.

19.35 Annotation Department of Regulation and Licensing test scores were subject to disclosure under the open records law. Munroe v. Braatz, 201 Wis. 2d 442, 549 N.W.2d 451 (Ct. App. 1996), 95-2557.

19.35 Annotation Subs. (1) (i) and (3) (f) did not permit a demand for prepayment of $1.29 in response to a mail request for a record. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549 N.W.2d 253 (Ct. App. 1996), 95-1711.

19.35 Annotation An agency cannot promulgate an administrative rule that creates an exception to the open records law. Chvala v. Bubolz, 204 Wis. 2d 82, 552 N.W.2d 892 (Ct. App. 1996), 95-3120.

19.35 Annotation While certain statutes grant explicit exceptions to the open records law, many statutes set out broad categories of records not open to an open records request. A custodian faced with such a broad statute must state with specificity a public policy reason for refusing to release the requested record. Chvala v. Bubolz, 204 Wis. 2d 82, 552 N.W.2d 892 (Ct. App. 1996), 95-3120.

19.35 Annotation The custodian is not authorized to comply with an open records request at some unspecified date in the future. Such a response constitutes a denial of the request. WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 555 N.W.2d 140 (Ct. App. 1996), 96-0053.

19.35 Annotation Subject to the redaction of officers’ home addresses and supervisors’ conclusions and recommendations regarding discipline, police records regarding the use of deadly force were subject to public inspection. State ex rel. Journal/Sentinel, Inc. v. Arreola, 207 Wis. 2d 496, 558 N.W.2d 670 (Ct. App. 1996), 95-2956.

19.35 Annotation A public school student’s interim grades are pupil records specifically exempted from disclosure under s. 118.125. If records are specifically exempted from disclosure, failure to specifically state reasons for denying an open records request for those records does not compel disclosure of those records. State ex rel. Blum v. Board of Education, 209 Wis. 2d 377, 565 N.W.2d 140 (Ct. App. 1997), 96-0758.

19.35 Annotation Requesting a copy of 180 hours of audiotape of 911 calls, together with a transcription of the tape and log of each transmission received, was a request without “reasonable limitation” and was not a “sufficient request” under sub. (1) (h). Schopper v. Gehring, 210 Wis. 2d 208, 565 N.W.2d 187 (Ct. App. 1997), 96-2782.

19.35 Annotation If the requested information is covered by an exempting statute that does not require a balancing of public interests, there is no need for a custodian to conduct such a balancing. Written denial claiming a statutory exception by citing the specific statute or regulation is sufficient. State ex rel. Savinski v. Kimble, 221 Wis. 2d 833, 586 N.W.2d 36 (Ct. App. 1998), 97-3356.

19.35 Annotation Protecting persons who supply information or opinions about an inmate to the parole commission is a public interest that may outweigh the public interest in access to documents that could identify those persons. State ex rel. Bergmann v. Faust, 226 Wis. 2d 273, 595 N.W.2d 75 (Ct. App. 1999), 98-2537.

19.35 Annotation Sub. (1) (b) gives the record custodian, and not the requester, the choice of how a record will be copied. The requester cannot elect to use the requester’s own copying equipment without the custodian’s permission. Grebner v. Schiebel, 2001 WI App 17, 240 Wis. 2d 551, 624 N.W.2d 892, 00-1549.

19.35 Annotation Requests for university admissions records focusing on test scores, class rank, grade point average, race, gender, ethnicity, and socio-economic background were not requests for personally identifiable information, and release was not barred by federal law or public policy. That the requests would require the university to redact information from thousands of documents under s. 19.36 (6) did not essentially require the university to create new records and, as such, did not provide grounds for denying the request under sub. (1) (L). Osborn v. Board of Regents, 2002 WI 83, 254 Wis. 2d 266, 647 N.W.2d 158, 00-2861.

19.35 Annotation The police report of a closed investigation regarding a teacher’s conduct that did not lead either to an arrest, prosecution, or any administrative disciplinary action was subject to release. Linzmeyer v. Forcey, 2002 WI 84, 254 Wis. 2d 306, 646 N.W.2d 811, 01-0197.

19.35 Annotation When a requested item is a public record under the open records law, and there is no statutory or common law exception, the open records law applies and the presumption of openness attaches to the record. The court must then decide whether that presumption can be overcome by a public policy favoring non-disclosure of the record. The fundamental question is whether there is harm to a public interest that outweighs the public interest in inspection of the record. A balancing test is applied on a case-by-case basis. If the harm to the public interest caused by release overrides the public interest in release, the inspection of the record may be prevented in spite of the general policy of openness. Linzmeyer v. Forcey, 2002 WI 84, 254 Wis. 2d 306, 646 N.W.2d 811, 01-0197.

19.35 Annotation The John Doe statute, s. 968.26, which authorizes secrecy in John Doe proceedings, is a clear statement of legislative policy and constitutes a specific exception to the public records law. On review of a petition for a writ stemming from a secret John Doe proceeding, the court of appeals may seal parts of a record in order to comply with existing secrecy orders issued by the John Doe judge. State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 260 Wis. 2d 653, 660 N.W.2d 260, 01-3220.

19.35 Annotation Sub. (1) (am) is not subject to a balancing of interests. Therefore, the exceptions to sub. (1) (am) should not be narrowly construed. A requester who does not qualify for access to records under sub. (1) (am) will always have the right to seek records under sub. (1) (a), in which case the records custodian must determine whether the requested records are subject to a statutory or common law exception and, if not, whether the strong presumption favoring access and disclosure is overcome by some even stronger public policy favoring limited access or nondisclosure determined by applying a balancing test. Hempel v. City of Baraboo, 2005 WI 120, 284 Wis. 2d 162, 699 N.W.2d 551, 03-0500.

19.35 Annotation Sub. (1) (a) does not mandate that, when a meeting is closed under s. 19.85, all records created for or presented at the meeting are exempt from disclosure. The court must still apply the balancing test articulated in Linzmeyer, 2002 WI 84. Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, 06-1143.

19.35 Annotation A general request does not trigger the sub. (4) (c) review sequence. Sub. (4) (c) recites the procedure to be employed if an authority receives a request under sub. (1) (a) or (am). An authority is an entity having custody of a record. The definition does not include a reviewing court. Seifert v. School District, 2007 WI App 207, 305 Wis. 2d 582, 740 N.W.2d 177, 06-2071.

19.35 Annotation The open records law cannot be used to circumvent established principles that shield attorney work product, nor can it be used as a discovery tool. The presumption of access under sub. (1) (a) is defeated because the attorney work product qualifies under the “otherwise provided by law” exception. Seifert v. School District, 2007 WI App 207, 305 Wis. 2d 582, 740 N.W.2d 177, 06-2071.

19.35 Annotation Sub. (1) (am) 1. plainly allows a records custodian to deny access to one who is, in effect, a potential adversary in litigation or other proceeding unless or until required to do so under the rules of discovery in actual litigation. The balancing of interests under sub. (1) (a) must include examining all the relevant factors in the context of the particular circumstances and may include balancing the competing interests considered under sub. (1) (am) 1. when evaluating the entire set of facts and making its specific demonstration of the need for withholding the records. Seifert v. School District, 2007 WI App 207, 305 Wis. 2d 582, 740 N.W.2d 177, 06-2071.

19.35 Annotation The sub. (1) (am) analysis is succinct. There is no balancing. There is no requirement that the investigation be current for the exemption for records collected or maintained in connection with a complaint, investigation, or other circumstances that may lead to a court proceeding to apply. Seifert v. School District, 2007 WI App 207, 305 Wis. 2d 582, 740 N.W.2d 177, 06-2071.

19.35 Annotation “Record” in sub. (5) and s. 19.32 (2) does not include identical copies of otherwise available records. A copy that is not different in some meaningful way from an original, regardless of the form of the original, is an identical copy. If a copy differs in some significant way for purposes of responding to an open records request, then it is not truly an identical copy, but instead a different record. Stone v. Board of Regents, 2007 WI App 223, 305 Wis. 2d 679, 741 N.W.2d 774, 06-2537.

19.35 Annotation Schopper, 210 Wis. 2d 208 (1997), does not permit a records custodian to deny a request based solely on the custodian’s assertion that the request could reasonably be narrowed, nor does Schopper require that the custodian take affirmative steps to limit the search as a prerequisite to denying a request under sub. (1) (h). The fact that the request may result in the generation of a large volume of records is not, in itself, a sufficient reason to deny a request as not properly limited, but at some point, an overly broad request becomes sufficiently excessive to warrant rejection under sub. (1) (h). State ex rel. Gehl v. Connors, 2007 WI App 238, 306 Wis. 2d 247, 742 N.W.2d 530, 06-2455.