Wisconsin Legislature: Confidentiality; Public Records; Words And Phrases;

Applicable race, sex, and ethnic groups for recordkeeping

. The records called for by this section are to be maintained by sex, and the following races and ethnic groups: Blacks (Negroes), American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), whites (Caucasians) other than Hispanic, and totals. The race, sex, and ethnic classifications called for by this section are consistent with the Equal Employment Opportunity Standard Form 100, Employer Information Report EEO-1 series of reports. The user should adopt safeguards to insure that the records required by this paragraph are used for appropriate purposes such as determining adverse impact, or (where required) for developing and monitoring affirmative action programs, and that such records are not used improperly. See sections 4E and 17(4), below.

73 Op. Att'y Gen. 26, 30 (1984)

Although the statement could be stronger, it appears the intent of this provision is to limit the use of sex and ethnic information for purposes relating to equal opportunity programs. In my opinion, it would be reasonable for a custodian to decide that in order to insure that the records are not used improperly they must not be made generally available to the public under the public records law.

73 Op. Att'y Gen. 26, 30 (1984)

I have found no similar restrictions on access to age-related information obtained in connection with the Age Discrimination Act of 1967. 29 U.S.C. 621-34 and 29 C.F.R. 1627. Therefore, federal law does not provide a basis for limiting access to such information under the open records law. Also, note that birth records kept by state and local registrars are generally available to the public. Sec. 69.23, Stats. This indicates a legislative determination that birth date information is not the sort of sensitive information which might be kept confidential under the public records law.

73 Op. Att'y Gen. 26, 30 (1984)

Your second question is:

73 Op. Att'y Gen. 26, 30 (1984)

2. If you determine that no statutory limitations exist, what common law limitations may exist? Does the application of a balancing test such as that described in

State ex rel. Youmans v. Owens

, 28 Wis. 2d 672, 682, 137 N.W. 2nd 470 (1965), result in any limitations on public access?

73 Op. Att'y Gen. 26, 30-31 (1984)

One characteristic of the common law on open records is that it does have limitations, and the limitations are embodied in the statement of the common law balancing test which has been expressed as follows: "[One] must balance the harm to the public interest from public examination of the records against the benefit to the public interest from opening these records to examination, giving much weight to the beneficial public interest in open public records."

State ex rel. Bilder v. Delavan Tp.

, 112 Wis. 2d 539, 553, 334 N.W.2d 252 (1983).

73 Op. Att'y Gen. 26, 31 (1984)

Appropriately, it is the responsibility of the custodian to apply the balancing test.

State ex rel. Youmans v. Owens

, 28 Wis. 2d 672, 682, 137 N.W.2d 470 (1965), 139 N.W.2d 241 (1966). The custodian is in the best position to identify and weigh conflicting interests. Remember, however, that there is a presumption in favor of access. I take this to mean that if counterbalancing interests are about even, the custodian should decide in favor of disclosure.

73 Op. Att'y Gen. 26, 31 (1984)

From information provided by you it appears that the major concerns about disclosure of an employe's birth date, sex, ethnic heritage and handicapped status is that it is personal information and could be used in undesirable ways by a requester. Specifically, there is a concern that the information could be used to target categories of people for unsolicited communications. There is also a concern that the information could be used to focus future discrimination.

73 Op. Att'y Gen. 26, 31 (1984)

You must evaluate these concerns for yourself, but I can give you some guidance based on existing legal authorities. First, it is well established that the requester's motives are not material. Sec. 19.35(i), Stats.;

Youmans

, 28 Wis. 2d at 677. Observing this rule, our office has opined that private entities, including those with commercial purposes, may have access to birth records (58 Op. Att'y Gen. 67 (1969)), lists of students awaiting a particular program in a Vocational, Technical and Adult Education District School (61 Op. Att'y Gen. 297 (1972)) and mailing lists compiled by state agencies (68 Op. Att'y Gen. 231 (1979)), even though disclosure may result in unsolicited communications.

73 Op. Att'y Gen. 26, 31 (1984)

As for the fear of using the information for future discrimination, I can only point out that our supreme court was not receptive to such a generalized assertion in

Newspapers, Inc. v. Breier

, 89 Wis. 2d 417, 421, 432, 279 N.W.2d 179 (1979). You must evaluate this fear based on your expertise but it is my opinion that the mere fear that some information

might

be used in a discriminatory way at some time is not sufficient to generally decline access to all the information all the time.

73 Op. Att'y Gen. 26, 32 (1984)

Your third question has two parts:

73 Op. Att'y Gen. 26, 32 (1984)

3. a) What effect does the preexisting pledge of confidentiality given by the University to its employes, limiting use to "statistical and reporting purposes only," have on the limitations, if any, described in your answers to questions #1 and #2, and further on my subsequent re-release of such information?....

73 Op. Att'y Gen. 26, 32 (1984)

b) Does the language used on the current state service application form (Rev. 4/83), quoted above, also constitute a pledge of confidentiality? This question arises because, if the information is made available to the public at large, it would not be possible to guarantee compliance with the statement that the information will be used for affirmative action and will not be used for discrimination.

73 Op. Att'y Gen. 26, 32 (1984)

Along with your questions you refer to a September 13, 1977, unpublished attorney general's opinion. It involved a request to the University to provide the names and addresses of all nonwhite University employes. The University resisted on the ground that ethnic heritage information had been solicited from and disclosed by employe candidates based on the understanding that it would be kept confidential and used only for statistical and reporting purposes in connection with the affirmative action program. I will quote from the opinion at length since it was not published.

73 Op. Att'y Gen. 26, 32 (1984)

[An earlier]... opinion of the Attorney General goes on to list the three criteria which are considered in determining whether a particular pledge of confidentiality comes within the exception to the public right of full access. First, there must be a clear pledge of confidentiality. Second, the pledge should be made in order to obtain the information. Third, the pledge must be necessary to obtain the information. If the pledge fulfills these criteria, then the custodian, before he can withhold records, must make the further determination that the harm to the public interest that would result from permitting inspection outweighs the public interest in allowing full access to the records.

73 Op. Att'y Gen. 26, 32-33 (1984)

From the information made available, it appears that the University has made a clear pledge of confidentiality to the minority persons, that the pledge was made in order to obtain the information, and that the pledge was necessary to obtain the information. The fact that only 40 of 1,000 minority employes on the Madison campus were agreeable to be identified by name and address seems to confirm the assertion that the University would not be able to perform its statistical reporting responsibilities to the federal government without the pledge of confidentiality.

73 Op. Att'y Gen. 26, 33 (1984)

The remaining question, then, is whether the University's interest in maintaining confidentiality outweighs Senator Swan's apparent interest in making the names available to his committee and the public. This brings us to your responsibility, as the custodian of the records, to weigh the relative public interests involved, that is, the interests of the University in maintaining the confidentiality of the names and addresses as against Senator Swan's responsibility as chairman of the Senate Committee on Governmental and Veterans Affairs. As the record presently stands, we know two things in regard to the needs of Senator Swan's committee. First, that they intend to do a study on the state's affirmative action program and desire the names and addresses of all minorities employed by the University System. Secondly, we know that Senator Swan's committee has denied his request that a subpoena be issued to the University for the records containing the names and addresses in question. In view of this fact and in the absence of any further specifics as to why the names and addresses of the minority employes are needed for the study, as opposed to the statistical information offered, it is my opinion that a court would support the determination of the University that the public interest in nondisclosure outweighs any public interest in disclosure.

73 Op. Att'y Gen. 26, 33 (1984)

Accordingly, I am of the opinion that under the present state of the record, you are not under an obligation to disclose to Senator Swan the ethnic heritage of specific employes by name and address where this information was received from the employe under a pledge of confidentiality.

73 Op. Att'y Gen. 26, 33-34 (1984)

In response to your questions, I see no reason to change this earlier opinion. If the confidential information is provided to you by the University it is the University's obligation to preserve the confidentiality by binding you to a similar pledge which you must honor. As stated in 57 Op. Att'y Gen. 187, 191 (1968): "The law seems clear that information of a confidential nature gained by one administrative branch of the government from another may be used in preparation for proper internal matters, but should not be disclosed to the public."