Chapter 19

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.

19.36(9) (9) Records of plans or specifications for state buildings. Records containing plans or specifications for any state-owned or state-leased building, structure or facility or any proposed state-owned or state-leased building, structure or facility are not subject to the right of inspection or copying under s. 19.35 (1) except as the department of administration otherwise provides by rule.

19.36(10) (10) Employee personnel records. Unless access is specifically authorized or required by statute, an authority shall not provide access under s. 19.35 (1) to records containing the following information, except to an employee or the employee’s 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 under ch. 111 or pursuant to a collective bargaining agreement under ch. 111:

19.36(10)(a) (a) Information maintained, prepared, or provided by an employer concerning the home address, home electronic mail address, home telephone number, or social security number of an employee, unless the employee authorizes the authority to provide access to such information.

19.36(10)(b) (b) Information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation.

19.36(10)(c) (c) Information pertaining to an employee’s employment examination, except an examination score if access to that score is not otherwise prohibited.

19.36(10)(d) (d) Information relating to one or more specific employees that is used by an authority or by the employer of the employees for staff management planning, including performance evaluations, judgments, or recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to employees.

19.36(11) (11) Records of an individual holding a local public office or a state public office. Unless access is specifically authorized or required by statute, an authority shall not provide access under s. 19.35 (1) to records, except to an individual to the extent required under s. 103.13, containing information maintained, prepared, or provided by an employer concerning the home address, home electronic mail address, home telephone number, or social security number of an individual who holds a local public office or a state public office, unless the individual authorizes the authority to provide access to such information. Except as provided in sub. (15), this subsection does not apply to the home address of an individual who holds an elective public office or to the home address of an individual who, as a condition of employment, is required to reside in a specified location.

Effective date note NOTE: Sub. (11) is shown as amended eff. 4-1-25 by 2023 Wis. Act 235. The cross-reference to sub. (15) was changed from sub. (14) by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of sub. (14), as created by 2023 Wis. Act 235. Prior to 4-1-25 sub. (11) reads:

Effective date text (11) Records of an individual holding a local public office or a state public office. Unless access is specifically authorized or required by statute, an authority shall not provide access under s. 19.35 (1) to records, except to an individual to the extent required under s. 103.13, containing information maintained, prepared, or provided by an employer concerning the home address, home electronic mail address, home telephone number, or social security number of an individual who holds a local public office or a state public office, unless the individual authorizes the authority to provide access to such information. This subsection does not apply to the home address of an individual who holds an elective public office or to the home address of an individual who, as a condition of employment, is required to reside in a specified location.

19.36(13) (13) Financial identifying information. An authority shall not provide access to personally identifiable information that contains an individual’s account or customer number with a financial institution, as defined in s. 134.97 (1) (b), including credit card numbers, debit card numbers, checking account numbers, or draft account numbers, unless specifically required by law.

19.36(14) (14) Identities of election officials or election registration officials. Unless access is specifically authorized or required by statute, an authority shall not provide access under s. 19.35 (1) to records containing the personally identifiable information of an election official, as defined in s. 5.02 (4e), or an election registration official, as defined in s. 5.02 (4g), except that an authority may provide access to the name of an election official or election registration official and the city and state where the official resides.

Effective date note NOTE: Sub. (14) is created eff. 7-1-25 by 2023 Wis. Act 126.

19.36(15) (15) Privacy protections for judicial officers. If a judicial officer, as defined in s. 757.07 (1) (e), submits a written request under s. 757.07 (4), an authority shall not provide access under s. 19.35 (1) to a certification of residence under s. 8.10 (8) or to the personal information, as defined in s. 757.07 (1) (g), of a judicial officer, except as provided under s. 8.10 (8) (b).

Effective date note NOTE: Sub. (15) is created eff. 4-1-25 by 2023 Wis. Act 235. Sub. (15) was created as sub. (14) by 2023 Wis. Act 235 and renumbered to sub. (15) by the legislative reference bureau under s. 13.92 (1) (bm) 2. The cross-references to s. 8.10 (8) were changed from s. 8.10 (7) by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of s. 8.10 (7), as created by 2023 Wis. Act 235.

19.36(16) (16) Judicial security profiles.

19.36(16)(a) (a) In this subsection:

19.36(16)(a)1. 1. “Judicial officer” means a person who currently is or who formerly was a supreme court justice, court of appeals judge, circuit court judge, municipal judge, tribal judge, temporary or permanent reserve judge, or circuit, supplemental, or municipal court commissioner.

19.36(16)(a)2. 2. “Judicial security profile form” means a form prescribed by the director of state courts.

19.36(16)(b) (b) An authority shall not provide access under s. 19.35 (1) to a judicial security profile form that is completed by or on behalf of a judicial officer and used to develop an emergency response plan.

19.36 Note NOTE: Sub. (16) was created as sub. (14) by 2023 Wis. Act 236 and renumbered to sub. (16) by the legislative reference bureau under s. 13.92 (1) (bm) 2.

19.36 History History: 1981 c. 335; 1985 a. 236; 1991 a. 39, 269, 317; 1993 a. 93; 1995 a. 27; 2001 a. 16; 2003 a. 33, 47; 2005 a. 59, 253; 2007 a. 97; 2009 a. 28; 2011 a. 32; 2013 a. 171; 2015 a. 55; 2017 a. 59; 2023 a. 126, 223, 235, 236; s. 13.92 (1) (bm) 2.

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

19.36 Annotation A settlement agreement containing a pledge of confidentiality and kept in the possession of a school district’s attorney was a public record subject to public access under sub. (3). Journal/Sentinel, Inc. v. School Board, 186 Wis. 2d 443, 521 N.W.2d 165 (Ct. App. 1994).

19.36 Annotation Sub. (3) does not require providing access to payroll records of subcontractors of a prime contractor of a public construction project. Building & Construction Trades Council v. Waunakee Community School District, 221 Wis. 2d 575, 585 N.W.2d 726 (Ct. App. 1998), 97-3282.

19.36 Annotation The ultimate purchasers of municipal bonds from the bond’s underwriter, whose only obligation was to purchase the bonds, were not contractor’s records under sub. (3). Machotka v. Village of West Salem, 2000 WI App 43, 233 Wis. 2d 106, 607 N.W.2d 319, 99-1163.

19.36 Annotation Production of an analog audio tape was insufficient under sub. (4) when the requester asked for examination and copying of the original digital audio tape. State ex rel. Milwaukee Police Ass’n v. Jones, 2000 WI App 146, 237 Wis. 2d 840, 615 N.W.2d 190, 98-3629.

19.36 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 sub. (6) did not essentially require the university to create new records and, as such, did not provide grounds for denying the request under s. 19.35 (1) (L). Osborn v. Board of Regents, 2002 WI 83, 254 Wis. 2d 266, 647 N.W.2d 158, 00-2861.

19.36 Annotation “Investigation” in sub. (10) (b) includes only that conducted by the public authority itself as a prelude to possible employee disciplinary action. An investigation achieves its “disposition” when the authority acts to impose discipline on an employee as a result of the investigation, regardless of whether the employee elects to pursue grievance arbitration or another review mechanism that may be available. Local 2489 v. Rock County, 2004 WI App 210, 277 Wis. 2d 208, 689 N.W.2d 644, 03-3101. See also Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, 06-1143.

19.36 Annotation Misconduct investigation and disciplinary records are not excepted from public disclosure under sub. (10) (d). Sub. (10) (b) is the only exception to the open records law relating to investigations of possible employee misconduct. Kroeplin v. DNR, 2006 WI App 227, 297 Wis. 2d 254, 725 N.W.2d 286, 05-1093.

19.36 Annotation Municipalities may not avoid liability under the open records law by contracting with independent contractor assessors for the collection, maintenance, and custody of property assessment records and then directing any requester of those records to the independent contractor assessors. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, 05-1473.

19.36 Annotation When requests to municipalities were for electronic/digital copies of assessment records, “PDF” files were “electronic/digital” files despite the fact that the files did not have all the characteristics that the requester wished. It is not required that requesters must be given access to an authority’s electronic databases to examine them, extract information from them, or copy them. Allowing requesters such direct access to the electronic databases of an authority would pose substantial risks. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, 05-1473.

19.36 Annotation By procuring a liability insurance policy and allowing the insurance company to retain counsel for it, the county in effect contracted with the law firm and created an attorney-client relationship. Because the liability insurance policy was the basis for the tripartite relationship between the county, insurance company, and law firm and was the basis for an attorney-client relationship between the law firm and county, the invoices produced or collected during the course of the law firm’s representation of the county came under the liability insurance policy, and sub. (3) governed the accessibility of the invoices. Juneau County Star-Times v. Juneau County, 2013 WI 4, 345 Wis. 2d 122, 824 N.W.2d 457, 10-2313.

19.36 Annotation Responding to a public records request is not a “function” of the police department for purposes of the “agency functions” exception to the federal Driver’s Privacy Protection Act, which allows disclosure of personal information from state motor vehicle records for use by a government agency in carrying out its functions. New Richmond News v. City of New Richmond, 2016 WI App 43, 370 Wis. 2d 75, 881 N.W.2d 339, 14-1938.

19.36 Annotation Under subs. (1) and (2), any record specifically exempted from disclosure pursuant to federal law also is exempt from disclosure under Wisconsin law. Federal regulations preclude release of any information pertaining to individuals detained in a state or local facility, and federal immigration detainer (I-247) forms contain only such information. Read together, subs. (1) and (2) and 8 CFR 236.6 exempt I-247 forms from release under Wisconsin public records law, and the forms are not subject to common-law exemptions or the public interest balancing test. Voces De La Frontera, Inc. v. Clarke, 2017 WI 16, 373 Wis. 2d 348, 891 N.W.2d 803, 15-1152.

19.36 Annotation Separation costs must be borne by the agency. 72 Atty. Gen. 99.

19.36 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.

19.36 Annotation An exemption to the federal Freedom of Information Act was not incorporated under sub. (1). 77 Atty. Gen. 20.

19.36 Annotation Former sub. (7), 2011 stats., is an exception to the public records law and should be narrowly construed. In former sub. (7), 2011 stats., “applicant” and “candidate” are synonymous. “Final candidates” are the five most qualified unless there are less than five applicants, in which case all are final candidates. 81 Atty. Gen. 37.

19.36 Annotation Public Access to Law Enforcement Records in Wisconsin. Fitzgerald. 68 MLR 705 (1985).

19.37 19.37 Enforcement and penalties.

19.37(1) (1) Mandamus. If an authority withholds a record or a part of a record or delays granting access to a record or part of a record after a written request for disclosure is made, the requester may pursue either, or both, of the alternatives under pars. (a) and (b).

19.37(1)(a) (a) The requester may bring an action for mandamus asking a court to order release of the record. The court may permit the parties or their attorneys to have access to the requested record under restrictions or protective orders as the court deems appropriate.

19.37(1)(b) (b) The requester may, in writing, request the district attorney of the county where the record is found, or request the attorney general, to bring an action for mandamus asking a court to order release of the record to the requester. The district attorney or attorney general may bring such an action.

19.37(1m) (1m) Time for commencing action. No action for mandamus under sub. (1) to challenge the denial of a request for access to a record or part of a record may be commenced by any committed or incarcerated person later than 90 days after the date that the request is denied by the authority having custody of the record or part of the record.

19.37(1n) (1n) Notice of claim. Sections 893.80 and 893.82 do not apply to actions commenced under this section.

19.37(2) (2) Costs, fees and damages.

19.37(2)(a) (a) Except as provided in this paragraph, the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole or in substantial part in any action filed under sub. (1) relating to access to a record or part of a record under s. 19.35 (1) (a). If the requester is a committed or incarcerated person, the requester is not entitled to any minimum amount of damages, but the court may award damages. Costs and fees shall be paid by the authority affected or the unit of government of which it is a part, or by the unit of government by which the legal custodian under s. 19.33 is employed and may not become a personal liability of any public official.

19.37(2)(b) (b) In any action filed under sub. (1) relating to access to a record or part of a record under s. 19.35 (1) (am), if the court finds that the authority acted in a willful or intentional manner, the court shall award the individual actual damages sustained by the individual as a consequence of the failure.

19.37(3) (3) Punitive damages. If a court finds that an authority or legal custodian under s. 19.33 has arbitrarily and capriciously denied or delayed response to a request or charged excessive fees, the court may award punitive damages to the requester.

19.37(4) (4) Penalty. Any authority which or legal custodian under s. 19.33 who arbitrarily and capriciously denies or delays response to a request or charges excessive fees may be required to forfeit not more than $1,000. Forfeitures under this section shall be enforced by action on behalf of the state by the attorney general or by the district attorney of any county where a violation occurs. In actions brought by the attorney general, the court shall award any forfeiture recovered together with reasonable costs to the state; and in actions brought by the district attorney, the court shall award any forfeiture recovered together with reasonable costs to the county.

19.37 History History: 1981 c. 335, 391; 1991 a. 269 s. 43d; 1995 a. 158; 1997 a. 94.

19.37 Annotation If an agency exercises due diligence but is unable to respond timely to a records request, the plaintiff must show that a mandamus action was necessary to secure the records release to qualify for an award of fees and costs under sub. (2). Racine Education Ass’n v. Board of Education, 145 Wis. 2d 518, 427 N.W.2d 414 (Ct. App. 1988). But see Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, 403 Wis. 2d 1, 976 N.W.2d 263, 19-0096.

19.37 Annotation Assuming sub. (1) (a) applies before mandamus is issued, the trial court retains discretion to refuse counsel’s participation in an in camera inspection. Milwaukee Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Ct. App. 1989).