Chapter 19

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).

19.37 Annotation If the trial court has an incomplete knowledge of the contents of the public records sought, it must conduct an in camera inspection to determine what may be disclosed following a custodian’s refusal. State ex rel. Morke v. Donnelly, 155 Wis. 2d 521, 455 N.W.2d 893 (1990).

19.37 Annotation A pro se litigant is not entitled to attorney fees. State ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991).

19.37 Annotation Actions brought under the open meetings and open records laws are exempt from the notice provisions of former s. 893.80 (1), 1993 stats. State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996), 94-2809.

19.37 Annotation An inmate’s right to mandamus under this section is subject to s. 801.02 (7), which requires exhaustion of administrative remedies before an action may be commenced. Moore v. Stahowiak, 212 Wis. 2d 744, 569 N.W.2d 711 (Ct. App. 1997), 96-2547.

19.37 Annotation When requests are complex, municipalities should be afforded reasonable latitude in time for their responses. An authority should not be subjected to the burden and expense of a premature public records lawsuit while it is attempting in good faith to respond, or to determine how to respond, to a request. What constitutes a reasonable time for a response by an authority depends on the nature of the request, the staff and other resources available to the authority to process the request, the extent of the request, and other related considerations. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, 05-1473.

19.37 Annotation The legislature did not intend to allow a record requester to control or appeal a mandamus action brought by the attorney general under sub. (1) (b). Sub. (1) outlines two distinct courses of action when a records request is denied, dictates distinct courses of action, and prescribes different remedies for each course. Nothing suggests that a requester is hiring the attorney general as a sort of private counsel to proceed with the case or that the requester would be a named plaintiff in the case with the attorney general appearing as counsel of record when proceeding under sub. (1) (b). State v. Zien, 2008 WI App 153, 314 Wis. 2d 340, 761 N.W.2d 15, 07-1930.

19.37 Annotation This section unambiguously limits punitive damages claims under sub. (3) to mandamus actions. The mandamus court decides whether there is a violation and, if so, whether it caused actual damages. Then, the mandamus court may consider whether punitive damages should be awarded under sub. (3). Capital Times Co. v. Doyle, 2011 WI App 137, 337 Wis. 2d 544, 807 N.W.2d 666, 10-1687.

19.37 Annotation Under the broad terms of s. 51.30 (7), the confidentiality requirements created under s. 51.30 generally apply to “treatment records” in criminal not guilty by reason of insanity (NGI) cases. All conditional release plans in NGI cases are, by statutory definition, treatment records. They are “created in the course of providing services to individuals for mental illness,” and thus should be deemed confidential. An order of placement in an NGI case is not a “treatment record.” La Crosse Tribune v. Circuit Court, 2012 WI App 42, 340 Wis. 2d 663, 814 N.W.2d 867, 10-3120.

19.37 Annotation The newspaper argued that s. 19.88 (3), of the open meetings law, which requires “the motions and roll call votes of each meeting of a governmental body shall be recorded, preserved and open to public inspection,” in turn, required the commission to record and disclose the information the newspaper requested under the open records law. The newspaper could not seek relief under the public records law for the commission’s alleged violation of the open meetings law and could not recover reasonable attorney fees, damages, and other actual costs under sub. (2) for an alleged violation of the open meetings law. Journal Times v. City of Racine Board of Police & Fire Commissioners, 2015 WI 56, 362 Wis. 2d 577, 866 N.W.2d 563, 13-1715.

19.37 Annotation A record custodian should not automatically be subject to potential liability under sub. (2) (a) for actively providing information, which it is not required to do in response to a public records request, to a requester when no record exists. While it might be a better course to inform a requester that no record exists, the language of the public records law does not specifically require such a response. Journal Times v. City of Racine Board of Police & Fire Commissioners, 2015 WI 56, 362 Wis. 2d 577, 866 N.W.2d 563, 13-1715.

19.37 Annotation A mandamus litigant has prevailed in substantial part, and thus is entitled to fees, when the requester obtains access to improperly withheld public records through a judicial order. That a requester may have succeeded in obtaining access to some but not all of the records is an issue subject to the court’s discretion in considering the amount of reasonable fees to be awarded. Under this section, the analysis of the extent of access goes to the discretionary award of reasonable fees, not the threshold determination of eligibility. Meinecke v. Thyes, 2021 WI App 58, 399 Wis. 2d 1, 963 N.W.2d 816, 20-0338. See also 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 For purposes of the fee shifting provision under sub. (2) (a), to prevail in whole or in substantial part means the party must obtain a judicially sanctioned change in the parties’ legal relationship. Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, 403 Wis. 2d 1, 976 N.W.2d 263, 19-0096. But see Wisconsin State Journal v. Blazel, 2023 WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450, 21-1196.

19.37 Annotation Friends of Frame Park, 2022 WI 57, does not preclude applying the prevailing-party test in a case in which a governmental authority voluntarily releases the requested records after initially denying their release. A decision on the merits challenging the authority’s initial outright denial of the records requests will have a practical effect on the requester’s entitlement to attorney fees. More specifically, if a court were to rule in favor of the requesters, then the requesters would meet the prevailing-party test stated in Friends of Frame Park. Wisconsin State Journal v. Blazel, 2023 WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450, 21-1196.

19.37 Annotation Actual damages are the liability of the agency. Punitive damages and forfeitures can be the liability of either the agency or the legal custodian, or both. Section 895.46 (1) (a) probably provides indemnification for punitive damages assessed against a custodian, but not for forfeitures. 72 Atty. Gen. 99.

19.39 19.39 Interpretation by attorney general. Any person may request advice from the attorney general as to the applicability of this subchapter under any circumstances. The attorney general may respond to such a request.

19.39 History History: 1981 c. 335.

subch. III of ch. 19 SUBCHAPTER III

CODE OF ETHICS FOR PUBLIC
OFFICIALS AND EMPLOYEES

19.41 19.41 Declaration of policy.

19.41(1) (1) It is declared that high moral and ethical standards among state public officials and state employees are essential to the conduct of free government; that the legislature believes that a code of ethics for the guidance of state public officials and state employees will help them avoid conflicts between their personal interests and their public responsibilities, will improve standards of public service and will promote and strengthen the faith and confidence of the people of this state in their state public officials and state employees.

19.41(2) (2) It is the intent of the legislature that in its operations the commission shall protect to the fullest extent possible the rights of individuals affected.

19.41 History History: 1973 c. 90; Stats. 1973 s. 11.01; 1973 c. 334 s. 33; Stats. 1973 s. 19.41; 1977 c. 277; 2015 a. 118 s. 266 (10).

19.42 19.42 Definitions. In this subchapter:

19.42(1) (1) “Anything of value” means any money or property, favor, service, payment, advance, forbearance, loan, or promise of future employment, but does not include compensation and expenses paid by the state, fees and expenses which are permitted and reported under s. 19.56, political contributions which are reported under ch. 11, or hospitality extended for a purpose unrelated to state business by a person other than an organization.

19.42(2) (2) “Associated,” when used with reference to an organization, includes any organization in which an individual or a member of his or her immediate family is a director, officer, or trustee, or owns or controls, directly or indirectly, and severally or in the aggregate, at least 10 percent of the outstanding equity or of which an individual or a member of his or her immediate family is an authorized representative or agent.

19.42(3m) (3m) “Candidate,” except as otherwise provided, has the meaning given in s. 11.0101 (1).

19.42(3s) (3s) “Candidate for local public office” means any individual who files nomination papers and a declaration of candidacy under s. 8.21 or who is nominated at a caucus under s. 8.05 (1) for the purpose of appearing on the ballot for election as a local public official or any individual who is nominated for the purpose of appearing on the ballot for election as a local public official through the write-in process or by appointment to fill a vacancy in nomination and who files a declaration of candidacy under s. 8.21.

19.42(4) (4) “Candidate for state public office” means any individual who files nomination papers and a declaration of candidacy under s. 8.21 or who is nominated at a caucus under s. 8.05 (1) for the purpose of appearing on the ballot for election as a state public official or any individual who is nominated for the purpose of appearing on the ballot for election as a state public official through the write-in process or by appointment to fill a vacancy in nomination and who files a declaration of candidacy under s. 8.21.

19.42(4g) (4g) “Clearly identified,” when used in reference to a communication containing a reference to a person, means one of the following:

19.42(4g)(a) (a) The person’s name appears.

19.42(4g)(b) (b) A photograph or drawing of the person appears.

19.42(4g)(c) (c) The identity of the person is apparent by unambiguous reference.

19.42(4p) (4p) “Commission” means the ethics commission.

19.42(4r) (4r) “Communication” means a message transmitted by means of a printed advertisement, billboard, handbill, sample ballot, radio or television advertisement, telephone call, or any medium that may be utilized for the purpose of disseminating or broadcasting a message, but not including a poll conducted solely for the purpose of identifying or collecting data concerning the attitudes or preferences of electors.

19.42(5) (5) “Department” means the legislature, the University of Wisconsin System, any authority or public corporation created and regulated by an act of the legislature and any office, department, independent agency or legislative service agency created under ch. 13, 14 or 15, any technical college district or any constitutional office other than a judicial office. In the case of a district attorney, “department” means the department of administration unless the context otherwise requires.

19.42(5m) (5m) “Elective office” means an office regularly filled by vote of the people.

19.42(6) (6) “Gift” means the payment or receipt of anything of value without valuable consideration.

19.42(7) (7) “Immediate family” means:

19.42(7)(a) (a) An individual’s spouse; and

19.42(7)(b) (b) An individual’s relative by marriage, lineal descent or adoption who receives, directly or indirectly, more than one-half of his or her support from the individual or from whom the individual receives, directly or indirectly, more than one-half of his or her support.

19.42(7m) (7m) “Income” has the meaning given under section 61 of the internal revenue code.

19.42(7s) (7s) “Internal revenue code” has the meanings given under s. 71.01 (6).

19.42(7u) (7u) “Local governmental unit” means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.

19.42(7w) (7w) “Local public office” means any of the following offices, except an office specified in sub. (13):

19.42(7w)(a) (a) An elective office of a local governmental unit.

19.42(7w)(b) (b) A county administrator or administrative coordinator or a city or village manager.

19.42(7w)(c) (c) An appointive office or position of a local governmental unit in which an individual serves for a specified term, except a position limited to the exercise of ministerial action or a position filled by an independent contractor.

19.42(7w)(cm) (cm) The position of member of the board of directors of a local exposition district under subch. II of ch. 229 not serving for a specified term.

19.42(7w)(d) (d) An appointive office or position of a local government which is filled by the governing body of the local government or the executive or administrative head of the local government and in which the incumbent serves at the pleasure of the appointing authority, except a clerical position, a position limited to the exercise of ministerial action or a position filled by an independent contractor.

19.42(7w)(e) (e) The position of member of the Milwaukee County mental health board as created under s. 51.41 (1d).

19.42(7w)(f) (f) An employee of a school district who holds a school administrator license or permit issued by the department of public instruction under rules promulgated by the department under s. 118.19 and whose employment requires that the individual hold that license or permit.

19.42(7w)(g) (g) An employee of a school district who acts as the head of facilities and maintenance and whose employment duties include making purchasing decisions or recommendations for the school district.

19.42(7x) (7x) “Local public official” means an individual holding a local public office.

19.42(8) (8) “Ministerial action” means an action that an individual performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of the individual’s own judgment as to the propriety of the action being taken.

19.42(9) (9) “Nominee” means any individual who is nominated by the governor for appointment to a state public office and whose nomination requires the advice and consent of the senate.

19.42(10) (10) “Official required to file” means:

19.42(10)(a) (a) A member or employee of the elections commission.

19.42(10)(ab) (ab) A member or employee of the ethics commission.

19.42(10)(b) (b) A member of a technical college district board or district director of a technical college, or any individual occupying the position of assistant, associate or deputy district director of a technical college.

19.42(10)(c) (c) A state public official identified under s. 20.923 except an official holding a state public office identified under s. 20.923 (6) (h).

19.42(10)(d) (d) A state public official whose appointment to state public office requires the advice and consent of the senate, except a member of the board of directors of the Bradley Center Sports and Entertainment Corporation created under ch. 232.

19.42(10)(e) (e) An individual appointed by the governor or the state superintendent of public instruction pursuant to s. 17.20 (2) other than a trustee of any private higher educational institution receiving state appropriations.

19.42(10)(f) (f) An auditor for the legislative audit bureau.

19.42(10)(g) (g) The chief clerk and sergeant at arms of each house of the legislature.

19.42(10)(h) (h) The members and employees of the Wisconsin Housing and Economic Development Authority, except clerical employees.

19.42(10)(i) (i) A municipal judge.

19.42(10)(j) (j) A member or the executive director of the judicial commission.

19.42(10)(k) (k) A division administrator of an office created under ch. 14 or a department or independent agency created or continued under ch. 15.

19.42(10)(L) (L) The executive director, executive assistant to the executive director, internal auditor, chief investment officer, chief financial officer, chief legal counsel, chief risk officer and investment directors of the investment board.

19.42(10)(n) (n) The chief executive officer and members of the board of directors of the University of Wisconsin Hospitals and Clinics Authority.

19.42(10)(o) (o) The chief executive officer and members of the board of directors of the Fox River Navigational System Authority.

19.42(10)(q) (q) The executive director and members of the board of directors of the Wisconsin Aerospace Authority.

19.42(10)(r) (r) The employees and members of the board of directors of the Lower Fox River Remediation Authority.

19.42(10)(sm) (sm) The employees of the Wisconsin Economic Development Corporation and the members of the board of directors of the Wisconsin Economic Development Corporation employed in the private sector who are appointed by the speaker of the assembly and the senate majority leader.

19.42(11) (11) “Organization” means any corporation, partnership, proprietorship, firm, enterprise, franchise, association, trust or other legal entity other than an individual or body politic.

19.42(11m) (11m) “Political party” means a political organization under whose name individuals who seek elective public office appear on the ballot at any election or any national, state, or local unit or affiliate of that organization.

19.42(12) (12) “Security” has the meaning given under s. 551.102 (28), except that the term does not include any of the following:

19.42(12)(a) (a) A certificate of deposit or a deposit in a savings and loan association, savings bank, credit union or similar association organized under the laws of any state.