Chapter 19

19.35 Annotation A video requested in this case discussed the victims of a sex extortion case and the devastating impact of those crimes. Disclosing the recording would have reignited interest in the case and allowed identification in the same way it occurred the first time around. There was sufficient factual detail in the recording to easily connect the dots to identify the dozens of victims, who would have been re-traumatized should this case have resulted in a repeat exposure of their identities almost a decade after those events occurred. Disclosure leading to revictimization would have run afoul of Wisconsin’s constitutional commitment to treating victims with “fairness, dignity and respect for their privacy” under article I, section 9m, of the Wisconsin Constitution. Democratic Party of Wisconsin v. Department of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584, 14-2536.

19.35 Annotation When the Wisconsin Employment Relations Commission (WERC) had received detailed and specific complaints of past coercion in other certification elections, a WERC employee lawfully performed the balancing test in concluding that the public interest in elections free from voter intimidation and coercion outweighed the public interest in favor of openness of public records. The public interest in certification elections that are free from intimidation and coercion is evidenced by the requirement that those elections be conducted by secret ballot and free from prohibited practices. The public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open public records under the circumstances presented in this case. Madison Teachers, Inc. v. Scott, 2018 WI 11, 379 Wis. 2d 439, 906 N.W.2d 436, 16-2214.

19.35 Annotation Sub. (3) (a) defers to other statutes that specifically authorize records custodians to charge fees for records that differ from the fees that the open records law itself authorizes. Section 343.24 (2m) grants the Department of Transportation (DOT) authority to charge parties for inspecting accident reports. Therefore, the requester was not entitled to free access to DOT’s database because both Wisconsin open records law and statutory authority permit DOT to charge access fees for certain records and because case law has held that the right to access records does not extend to the right to access databases. Media Placement Services, Inc. v. DOT, 2018 WI App 34, 382 Wis. 2d 191, 913 N.W.2d 224, 17-0791.

19.35 Annotation The second sentence in sub. (1) (b) only applies to a requester who appears in person. Lueders v. Krug, 2019 WI App 36, 388 Wis. 2d 147, 931 N.W.2d 898, 18-0431.

19.35 Annotation When a requester requests records in electronic form, providing access to only paper printouts of those records is not a satisfactory response to the request. Lueders v. Krug, 2019 WI App 36, 388 Wis. 2d 147, 931 N.W.2d 898, 18-0431.

19.35 Annotation In this case, the circuit court did not erroneously exercise its discretion when it ordered the plaintiff parents, if they wished to proceed, to file under seal and pursuant to a protective order an amended complaint stating their identities such that their identities would be disclosed only to the court and the attorneys for the litigants. Doe v. Madison Metropolitan School District, 2021 WI App 60, 399 Wis. 2d 102, 963 N.W.2d 823, 20-1032.

19.35 Annotation Affirmed. 2022 WI 65, 403 Wis. 2d 369, 976 N.W.2d 584, 20-1032.

19.35 Annotation A records custodian must determine whether the surrounding factual circumstances create an exceptional case not governed by the strong presumption of openness. An exceptional case exists when the facts are such that the public policy interest favoring nondisclosure outweigh the public policy interests favoring disclosure. The public has a strong interest in being informed about its public officials and whether those officials have engaged in misconduct. Those interests cannot be outweighed simply by the fact that an official played a minor role in an improper search. Milwaukee Deputy Sheriffs’ Ass’n v. County of Milwaukee County Clerk, 2021 WI App 80, 399 Wis. 2d 769, 967 N.W.2d 185, 20-2028.

19.35 Annotation In this case, the school district failed to meet its burden to demonstrate that the public interest in keeping parent email addresses secret—and preserving them solely for the district’s broad use—outweighed the strong public policy in favor of releasing these public records. Gierl v. Mequon-Thiensville School District, 2023 WI App 5, 405 Wis. 2d 757, 985 N.W.2d 116, 21-2190.

19.35 Annotation Specific reasons why each document warrants confidentiality are necessary to provide the requester with sufficient notice of the grounds for denial to enable the requester to prepare a challenge to the withholding. In this case, the custodian’s application of the balancing test fell short because it did not describe the records that were responsive to the requests and then apply the balancing test to each record individually to explain why it was not disclosed. The absence of record-specific policy reasons for denial was particularly problematic here, because the differing natures of the three documents implicated different levels of public interest. Furthermore, in failing to apply the balancing test to each document, the custodian effectively used a blanket or automatic denial rule that applied to all records related to certain types of complaints. A blanket rule is not a proper application of the balancing test. Wisconsin State Journal v. Blazel, 2023 WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450, 21-1196.

19.35 Annotation The presumption of the public records law is that members of the public are entitled to evaluate public records for themselves and are not required to trust in a governmental authority’s selective summaries. An authority’s statement about its own evaluation of the requested records and its own judgment about the public relevance of those records is no substitute for a proper response to a public records request. Wisconsin State Journal v. Blazel, 2023 WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450, 21-1196.

19.35 Annotation A legitimate public policy consideration for a records custodian to use in making possible redactions in the context of an investigation of a sexual harassment complaint can be the need to avoid creating chilling effects limiting complaints. But that proposition provides no support for declining to release even redacted versions of records. When victims and witnesses have a strong privacy interest in protecting their privacy, that public interest substantially outweighs the public interest in disclosure of their names. Wisconsin State Journal v. Blazel, 2023 WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450, 21-1196.

19.35 Annotation Notice of Voting Eligibility forms used to make the report required under s. 54.25 (2) (c) 1. g. regarding restrictions to an individual’s voting rights as a result of a court’s finding of incompetency in a guardianship proceeding are court records pertinent to the finding of incompetency and therefore are barred from disclosure under s. 54.75 and the public records law. Wisconsin Voter Alliance v. Reynolds, 2023 WI App 66, 410 Wis. 2d 335, 1 N.W.3d 748, 22-1749.

19.35 Annotation A custodian may not require a requester to pay the cost of an unrequested certification. Unless the fee for copies of records is established by law, a custodian may not charge more than the actual and direct cost of reproduction. 72 Atty. Gen. 36.

19.35 Annotation Copying fees, but not location fees, may be imposed on a requester for the cost of a computer run. 72 Atty. Gen. 68.

19.35 Annotation Discussing the fee for copying public records. 72 Atty. Gen. 150.

19.35 Annotation Public records relating to employee grievances are not generally exempt from disclosure. Nondisclosure must be justified on a case-by-case basis. 73 Atty. Gen. 20.

19.35 Annotation Discussing the disclosure of an employee’s birthdate, sex, ethnic heritage, and handicapped status. 73 Atty. Gen. 26.

19.35 Annotation The Department of Regulation and Licensing may refuse to disclose records relating to complaints against health care professionals while the matters are merely “under investigation.” Good faith disclosure of the records will not expose the custodian to liability for damages. Prospective continuing requests for records are not contemplated by public records law. 73 Atty. Gen. 37.

19.35 Annotation Prosecutors’ case files are exempt from disclosure. 74 Atty. Gen. 4.

19.35 Annotation Discussing the relationship between the public records law and pledges of confidentiality in settlement agreements. 74 Atty. Gen. 14.

19.35 Annotation Discussing a computerized compilation of bibliographic records in relation to copyright law. A requester is entitled to a copy of a computer tape or a printout of information on the tape. 75 Atty. Gen. 133.

19.35 Annotation Ambulance records relating to medical history, condition, or treatment are confidential while other ambulance call records are subject to disclosure under the public records law. 78 Atty. Gen. 71.

19.35 Annotation Courts are likely to require disclosure of legislators’ mailing and distribution lists absent a factual showing that the public interest in withholding the records outweighs the public interest in their release. OAG 2-03.

19.35 Annotation If a legislator custodian decides that a mailing or distribution list compiled and used for official purposes must be released under the public records statute, the persons whose names, addresses, or telephone numbers are contained on the list are not entitled to notice and the opportunity to challenge the decision prior to release of the record. OAG 2-03.

19.35 Annotation Access Denied: How Woznicki v. Erickson Reversed the Statutory Presumption of Openness in the Wisconsin Open Records Law. Munro. 2002 WLR 1197.

19.356 19.356 Notice to record subject; right of action.

19.356(1) (1) Except as authorized in this section or as otherwise provided by statute, no authority is required to notify a record subject prior to providing to a requester access to a record containing information pertaining to that record subject, and no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record.

19.356(2) (2) 

19.356(2)(a) (a) Except as provided in pars. (b) to (d) and as otherwise authorized or required by statute, if an authority decides under s. 19.35 to permit access to a record specified in this paragraph, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on any record subject to whom the record pertains, either by certified mail or by personally serving the notice on the record subject. The notice shall briefly describe the requested record and include a description of the rights of the record subject under subs. (3) and (4). This paragraph applies only to the following records:

19.356(2)(a)1. 1. A record containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee’s employer.

19.356(2)(a)2. 2. A record obtained by the authority through a subpoena or search warrant.

19.356(2)(a)3. 3. A record prepared by an employer other than an authority, if that record contains information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information.

19.356(2)(b) (b) Paragraph (a) does not apply to an authority who provides access to a record pertaining to an employee to the employee who is the subject of the record or to his or her representative to the extent required under s. 103.13 or to a recognized or certified collective bargaining representative to the extent required to fulfill a duty to bargain or pursuant to a collective bargaining agreement under ch. 111.

19.356(2)(c) (c) Paragraph (a) does not apply to access to a record produced in relation to a function specified in s. 106.54 or 230.45 or subch. II of ch. 111 if the record is provided by an authority having responsibility for that function.

19.356(2)(d) (d) Paragraph (a) does not apply to the transfer of a record by the administrator of an educational agency to the state superintendent of public instruction under s. 115.31 (3) (a).

19.356(3) (3) Within 5 days after receipt of a notice under sub. (2) (a), a record subject may provide written notification to the authority of his or her intent to seek a court order restraining the authority from providing access to the requested record.

19.356(4) (4) Within 10 days after receipt of a notice under sub. (2) (a), a record subject may commence an action seeking a court order to restrain the authority from providing access to the requested record. If a record subject commences such an action, the record subject shall name the authority as a defendant. Notwithstanding s. 803.09, the requester may intervene in the action as a matter of right. If the requester does not intervene in the action, the authority shall notify the requester of the results of the proceedings under this subsection and sub. (5).

19.356(5) (5) An authority shall not provide access to a requested record within 12 days of sending a notice pertaining to that record under sub. (2) (a). In addition, if the record subject commences an action under sub. (4), the authority shall not provide access to the requested record during pendency of the action. If the record subject appeals or petitions for review of a decision of the court or the time for appeal or petition for review of a decision adverse to the record subject has not expired, the authority shall not provide access to the requested record until any appeal is decided, until the period for appealing or petitioning for review expires, until a petition for review is denied, or until the authority receives written notice from the record subject that an appeal or petition for review will not be filed, whichever occurs first.

19.356(6) (6) The court, in an action commenced under sub. (4), may restrain the authority from providing access to the requested record. The court shall apply substantive common law principles construing the right to inspect, copy, or receive copies of records in making its decision.

19.356(7) (7) The court, in an action commenced under sub. (4), shall issue a decision within 10 days after the filing of the summons and complaint and proof of service of the summons and complaint upon the defendant, unless a party demonstrates cause for extension of this period. In any event, the court shall issue a decision within 30 days after those filings are complete.

19.356(8) (8) If a party appeals a decision of the court under sub. (7), the court of appeals shall grant precedence to the appeal over all other matters not accorded similar precedence by law. An appeal shall be taken within the time period specified in s. 808.04 (1m).

19.356(9) (9) 

19.356(9)(a) (a) Except as otherwise authorized or required by statute, if an authority decides under s. 19.35 to permit access to a record containing information relating to a record subject who is an officer or employee of the authority holding a local public office or a state public office, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on the record subject, either by certified mail or by personally serving the notice on the record subject. The notice shall briefly describe the requested record and include a description of the rights of the record subject under par. (b).

19.356(9)(b) (b) Within 5 days after receipt of a notice under par. (a), a record subject may augment the record to be released with written comments and documentation selected by the record subject. Except as otherwise authorized or required by statute, the authority under par. (a) shall release the record as augmented by the record subject.

19.356 History History: 2003 a. 47; 2011 a. 84.

19.356 Note NOTE: 2003 Wis. Act 47, which created this section, contains extensive explanatory notes.

19.356 Annotation The right of a public employee to obtain de novo judicial review of an authority’s decision to allow public access to certain records granted by this section is no broader than the common law right previously recognized. It is not a right to prevent disclosure solely on the basis of a public employee’s privacy and reputational interests. The public’s interest in not injuring the reputations of public employees must be given due consideration, but it is not controlling. Local 2489 v. Rock County, 2004 WI App 210, 277 Wis. 2d 208, 689 N.W.2d 644, 03-3101.

19.356 Annotation An intervenor as of right under the statute is “a party” under sub. (8) whose appeal is subject to the time period specified in s. 808.04 (1m). The only time period referenced in s. 808.04 (1m) is 20 days. Zellner v. Herrick, 2009 WI 80, 319 Wis. 2d 532, 770 N.W.2d 305, 07-2584.

19.356 Annotation This section does not set forth the only course of action that the subject of a disclosure may engage in to prevent disclosure. Subs. (3) and (4) state that “a record subject may commence an action.” The plain language of the statute in no way discourages the subject of a records request from engaging in less litigious means to prevent disclosure nor does it prevent a records custodian from changing its mind. State ex rel. Ardell v. Milwaukee Board of School Directors, 2014 WI App 66, 354 Wis. 2d 471, 849 N.W.2d 894, 13-1650.

19.356 Annotation For challenges to decisions by authorities under the public records law to release records, as opposed to decisions by authorities to withhold records, the legislature has precluded judicial review except in defined circumstances. The right-of-action provision under sub. (1) unambiguously bars any person from seeking judicial review of an authority’s decision to release a record unless: 1) a provision within this section authorizes judicial review; or 2) a statute other than this section authorizes judicial review. Teague v. Van Hollen, 2016 WI App 20, 367 Wis. 2d 547, 877 N.W.2d 379, 14-2360.

19.356 Annotation A district attorney is not an “employee” as defined in s. 19.32 (1bg) and as used in sub. (2) (a) 1. A district attorney may not maintain an action under sub. (4) to restrain an authority from providing access to requested records when the requested records do not fall within the sub. (2) (a) 1. exception to the general rule that a “record subject” is not entitled to notice or pre-release judicial review of the decision of an authority to provide access to records pertaining to that record subject. Moustakis v. Department of Justice, 2016 WI 42, 368 Wis. 2d 677, 880 N.W.2d 142, 14-1853.

19.356 Annotation Sub. (5) applies to an “authority” and does not preclude a court from providing limited access to the requested records on an attorney’s eyes-only basis for purposes of briefing a case before the court. Section 19.37 (1) (a), which applies when a party seeks release of records in an action for mandamus, provides guidance. Whether the action seeks release or an injunction, the need for limited review by a party who intervenes by right, in order to ensure fair and fully informed adjudication of the dispute, is equally applicable. Hagen v. Board of Regents, 2018 WI App 43, 383 Wis. 2d 567, 916 N.W.2d 198, 17-2058.

19.356 Annotation Sub. (1) clearly abrogates the common law rules for pre-release notice and judicial review. It does not distinguish between different categories of individuals or records; it states a general rule that applies to all claims for pre-release judicial review and provides two types of exceptions. Wisconsin Manufacturers & Commerce v. Evers, 2022 WI 38, 401 Wis. 2d 699, 977 N.W.2d 374, 20-2081.

19.356 Annotation This section makes clear that no one has a right to block the release of a public record unless otherwise specified. The Declaratory Judgments Act, s. 806.04, does not fall within the exception to sub. (1) for statutes that “otherwise provide” for pre-release judicial review of records responses. Wisconsin Manufacturers & Commerce v. Evers, 2022 WI 38, 401 Wis. 2d 699, 977 N.W.2d 374, 20-2081.

19.356 Annotation In this case, the employer did not have the right under the sub. (2) (a) 3. exception to block the release by the sheriff’s office of the requested surveillance video footage from the employer’s parking garage. The employer did not qualify as a record subject, as defined in s. 19.32 (2g), because the employer was not an “individual” about whom personally identifiable information was contained in the record. Journal Sentinel, Inc. v. Milwaukee County Sheriff’s Office, 2022 WI App 44, 404 Wis. 2d 328, 979 N.W.2d 609, 21-0615.

19.356 Annotation Sub. (2) (a) 1. must be interpreted as requiring notification when an authority proposes to release records in its possession that are the result of an investigation by an employer into a disciplinary or other employment matter involving an employee, but not when there has been an investigation of possible employment-related violation by the employee and the investigation is conducted by some entity other than the employee’s employer. OAG 1-06.

19.356 Annotation Sub. (2) (a) 2. is unambiguous. If an authority has obtained a record through a subpoena or a search warrant, it must provide the requisite notice before releasing the records. The duty to notify, however, does not require notice to every record subject who happens to be named in the subpoena or search warrant records. Under sub. (2) (a), DCI must serve written notice of the decision to release the record to any record subject to whom the record pertains. OAG 1-06.

19.356 Annotation To the extent any requested records proposed to be released are records prepared by a private employer and those records contain information pertaining to one of the private employer’s employees, sub. (2) (a) 3. does not allow release of the information without obtaining authorization from the individual employee. OAG 1-06.

19.356 Annotation Sub. (9) does not require advance notification and a five-day delay before releasing a record that mentions the name of a person holding state or local public office in any way. A record mentioning the name of a public official does not necessarily relate to that public official within the meaning of sub. (9) (a). Sub. (9) is not limited, however, to the specific categories of records enumerated in sub. (2) (a). OAG 7-14.

19.356 Annotation The use of the phrase “is created” in sub. (2) (a) 1. implies that the status of the record subject should be consistent with when the record was created. Therefore, if the record subject is an employee at the time the record is created, the record subject is entitled to notice even if the employee is no longer employed by the authority at the time the authority receives the request. OAG 2-18.

19.356 Annotation Sub. (9) does not apply when a record contains information relating to a record subject who is an officer or employee who formerly held a local or state public office. The provision only applies when an officer or employee of the authority currently holds a local or state public office. OAG 2-18.

19.356 Annotation Should service fail in the manner specifically required in subs. (2) (a) 1. and (9) (a), after reasonable diligence, the alternatives to personal service in s. 801.11 may be used to provide notice to record subjects. Section 801.11 (1) appears reasonable and consistent with the public records law’s purposes with the exception of the publication requirement. An authority may leave a copy of the notice at the record subject’s usual place of abode in a manner substantially similar to s. 801.11 (1) (b). If the record subject’s usual place of abode cannot be located after reasonable diligence, an authority may leave a copy of the notice at the record subject’s usual place of business in a matter substantially similar to s. 801.11 (4) (b). If, after reasonable diligence, the authority is unable to effectuate service according to the public records law’s provisions and other alternatives to personal service that are consistent with the public records law’s purpose, the authority may release the records. OAG 2-18.

19.36 19.36 Limitations upon access and withholding.

19.36(1) (1) Application of other laws. Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure under s. 19.35 (1), except that any portion of that record which contains public information is open to public inspection as provided in sub. (6).

19.36(2) (2) Law enforcement records. Except as otherwise provided by law, whenever federal law or regulations require or as a condition to receipt of aids by this state require that any record relating to investigative information obtained for law enforcement purposes be withheld from public access, then that information is exempt from disclosure under s. 19.35 (1).

19.36(3) (3) Contractors’ records. Each authority shall make available for inspection and copying under s. 19.35 (1) any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority. This subsection does not apply to the inspection or copying of a record under s. 19.35 (1) (am).

19.36(4) (4) Computer programs and data. A computer program, as defined in s. 16.971 (4) (c), is not subject to examination or copying under s. 19.35 (1), but the material used as input for a computer program or the material produced as a product of the computer program is subject to the right of examination and copying, except as otherwise provided in s. 19.35 or this section.

19.36(5) (5) Trade secrets. An authority may withhold access to any record or portion of a record containing information qualifying as a trade secret as defined in s. 134.90 (1) (c).

19.36(6) (6) Separation of information. If a record contains information that is subject to disclosure under s. 19.35 (1) (a) or (am) and information that is not subject to such disclosure, the authority having custody of the record shall provide the information that is subject to disclosure and delete the information that is not subject to disclosure from the record before release.

19.36(7) (7) Identities of applicants for public positions.

19.36(7)(a) (a) In this subsection:

19.36(7)(a)1. 1. “Final candidate” means each applicant who is seriously considered for appointment or whose name is certified for appointment, and whose name is submitted for final consideration to an authority for appointment, to any of the following:

19.36(7)(a)1.a. a. A state position that is not a position in the classified service and that is not a position in the University of Wisconsin System.

19.36(7)(a)1.b. b. A local public office.

19.36(7)(a)1.c. c. The position of president, vice president, or senior vice president of the University of Wisconsin System; the position of chancellor of an institution; or the position of the vice chancellor who serves as deputy at each institution.

19.36(7)(a)2. 2. “Final candidate” includes all of the following, but only with respect to the offices and positions described under subd. 1. a. and b.:

19.36(7)(a)2.a. a. Whenever there are at least 5 applicants for an office or position, each of the 5 applicants who are considered the most qualified for the office or position by an authority.

19.36(7)(a)2.b. b. Whenever there are fewer than 5 applicants for an office or position, each applicant.

19.36(7)(a)2.c. c. Whenever an appointment is to be made from a group of more than 5 applicants considered the most qualified for an office or position by an authority, each applicant in that group.

19.36(7)(a)3. 3. “Institution” has the meaning given in s. 36.05 (9).

19.36(7)(b) (b) Every applicant for a position with any authority may indicate in writing to the authority that the applicant does not wish the authority to reveal his or her identity. Except with respect to an applicant whose name is certified for appointment to a position in the state classified service or a final candidate, if an applicant makes such an indication in writing, the authority shall not provide access to any record related to the application that may reveal the identity of the applicant.

19.36(8) (8) Identities of law enforcement informants.

19.36(8)(a) (a) In this subsection:

19.36(8)(a)1. 1. “Informant” means an individual who requests confidentiality from a law enforcement agency in conjunction with providing information to that agency or, pursuant to an express promise of confidentiality by a law enforcement agency or under circumstances in which a promise of confidentiality would reasonably be implied, provides information to a law enforcement agency or, is working with a law enforcement agency to obtain information, related in any case to any of the following:

19.36(8)(a)1.a. a. Another person who the individual or the law enforcement agency suspects has violated, is violating or will violate a federal law, a law of any state or an ordinance of any local government.

19.36(8)(a)1.b. b. Past, present or future activities that the individual or law enforcement agency believes may violate a federal law, a law of any state or an ordinance of any local government.

19.36(8)(a)2. 2. “Law enforcement agency” has the meaning given in s. 165.83 (1) (b), and includes the department of corrections.

19.36(8)(b) (b) If an authority receives a request to inspect or copy a record or portion of a record under s. 19.35 (1) (a) that contains specific information including but not limited to a name, address, telephone number, voice recording, or handwriting sample that, if disclosed, would identify an informant, the authority shall delete the portion of the record in which the information is contained or, if no portion of the record can be inspected or copied without identifying the informant, shall withhold the record unless the legal custodian of the record, designated under s. 19.33, makes a determination, at the time that the request is made, that the public interest in allowing a person to inspect, copy or receive a copy of such identifying information outweighs the harm done to the public interest by providing such access.