OAG 2-18

If Wis. Stat. § 19.356(2)(a)1. and Wis. Stat. § 19.356(9)(a) do apply to records containing information related to former employees, or former officers or employees holding local or state public offices, what should a custodian do if he or she cannot locate the former employee or officer? Is the Authority prohibited from providing access to the requested records? Or, after a number of attempts to provide notice by certified mail and/or personal service, should the authority provide access to the requested records?

Wisconsin Stat. § 19.356(2)(a)1. and (9)(a) both require service of notice by certified mail or personal service. The statute is silent on what an authority must do should service via certified mail and personal service fail. The legislature should address this silence. However, in the absence of guidance in the public records law, I can offer some best practices.

Best practices include following other service of process laws that are consistent with the public records law’s purpose. Wisconsin Stat. § 801.11 governs service of process in Wisconsin.[2] The statute requires that service must be made with “reasonable diligence.”[3] Wis. Stat. § 801.11(1). The statute requires personal service, or “[i]f with reasonable diligence the [individual] cannot be served [by personal service], then by leaving a copy of the summons at the [individual’s] usual place of abode.” Wis. Stat. § 801.11(1)(b). “If with reasonable diligence the [individual] cannot be served [by personally serving or by leaving a copy of the summons at the usual place of abode], service may be made by publication . . . .” Wis. Stat. § 801.11(1)(c).

Wisconsin Stat. § 801.11(1) appears reasonable and consistent with the public records law’s purposes with the exception of the publication requirement. To require an authority to provide service by publication in every such instance where a record subject could not be located would frustrate one of the public records law’s purposes. Several provisions of the public records law make it evident that public access is to be provided without unnecessary delay. See Local 2489, AFSCME, AFL-CIO,
277 Wis. 2d 208, ¶ 14 (“[T]he language of Wis. Stat. § 19.356 evinces a legislative intent that public records be promptly disclosed to a requester, even if their release is challenged by an employee.”). The law requires an authority to fill or deny a request “as soon as practicable and without delay.” Wis. Stat. § 19.35(4). It provides for short timeframes for records subjects to challenge or augment records. Wis. Stat.
§ 19.356(3)-(5), (9)(b). It also accelerates the timetable for adjudication of such matters. See Wis. Stat. § 19.356(7)-(8).

An authority should exercise reasonable diligence to locate and effectuate service to those entitled to notice.[4] In light of the guidance offered by the general service statute, and the language and purpose of the public records law, it is reasonable that should service fail in the manner specifically required by the public records law after reasonable diligence, the alternatives to personal service provided by the legislature elsewhere in the statutes may be used to provide notice to record subjects. Therefore, should service by certified mail or personal service fail after reasonable diligence, an authority may choose to use two of the alternative methods of service available in the general service statute.[5]

First, an authority may leave a copy of the notice at the record subject’s usual place of abode in a manner substantially similar to Wis. Stat. § 801.11(1)(b). Second, 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 Wis. Stat. § 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. The authority should accomplish these steps as soon as practicable and without delay.

QUESTION FOUR

Assuming Wis. Stat. § 19.356 is applicable, do authorities have to provide notice to a record subject if the record being requested was introduced into evidence at a public hearing or proceedings, has been published, or is otherwise already a publicly available record?

  Wisconsin Stat. § 19.356 was enacted as a result of the Wisconsin’s Supreme Court’s recognition of a record subject’s privacy and reputational interests. By enacting Wis. Stat. § 19.356, the legislature sought to limit the extent to which notice was required while recognizing an interest in the privacy and reputation of certain record subjects.

“We assume that the legislature’s intent is expressed in the statutory language.” Kalal, 271 Wis. 2d 633, ¶ 44. As stated, the supreme court has “held that statutory interpretation ‘begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.’” Id. ¶ 45 (citation omitted). In interpreting this provision of the public records law, I am not at liberty to “disregard the plain, clear words of the statute.” See id. ¶ 46 (citation omitted). With these statutory interpretation principles in mind, I must presume that had the legislature intended to create an exception to the notice requirements for records already introduced into evidence at a public hearing or proceedings, published, or otherwise already publicly available, the legislature would have expressly provided for such an exception in the statute.[6] The public’s access to certain records may be accelerated and government efficiency improved by the inclusion of such an exception. However, such an exception must come from the legislature.

If the records were previously released pursuant to Wis. Stat. § 19.35, no additional notice to record subjects is required. Section 19.356(2)(a) states that notice is required “if an authority decides under s. 19.35 to permit access to a record specified in this paragraph.” Wis. Stat. § 19.356(2)(a) (emphasis added). With the exception of certain personally identifiable information released pursuant to Wis. Stat.
§ 19.35(1)(am), records released pursuant to the public records law are public records. Permitting access by one requester to records is equivalent to permitting access by the entire public to the records. See Democratic Party of Wisconsin v. Wisconsin Department of Justice, 2016 WI 100, ¶ 19, 372 Wis. 2d. 460, 888 N.W.2d 584 (“releasing the [record] to one effectively renders it public to all”). Therefore, once an authority, having complied with any necessary notice requirements, fulfils a requester’s public records request, the authority has permitted access to the record for the purposes of Wis. Stat. § 19.356. No additional notice to records subjects is required for future requests of the same record.[7]

The public records law is essential in helping to ensure government openness and transparency. However, the language of the public records law does not address every situation or circumstance. While the Attorney General may respond to requests for advice as to the applicability of the public records law pursuant to Wis. Stat.
§ 19.39, the legislature has the ability to best address the circumstances posed in your questions. You may wish to contact your legislators to request that they address these areas.

            Very truly yours,

            BRAD D. SCHIMEL

            Wisconsin Attorney General

PMF

1

This interpretation also addresses some practical considerations. For instance, a terminated employee who successfully grieves their termination and is reinstated would be entitled to notice regardless of whether the records request was received before or after his or her termination or reinstatement. This interpretation avoids inconsistency such as would occur under a different interpretation in a scenario in which a number of employees are terminated based on group conduct, and the timing of the terminations and public records requests vary such that only certain employees, who have yet to be terminated, would be entitled notice.

2

Wisconsin Stat. § 801.11(1)(b) states, “If with reasonable diligence the defendant cannot be served under par. (a), then by leaving a copy of the summons at the defendant’s usual place of abode:”

1.   In the presence of some competent member of the family at least 14 years of age, who shall be informed of the contents thereof;

1m.   In the presence of a competent adult, currently residing in the abode of the defendant, who shall be informed of the contents of the summons; or

2.   Pursuant to the law for the substituted service of summons or like process upon defendants in actions brought in courts of general jurisdiction of the state in which service is made.

3

The Wisconsin Court of Appeals has described “reasonable diligence” as follows:

[D]iligence to be pursued and shown . . . which is reasonable under the circumstances and not all possible diligence which may be conceived. Nor is it that diligence which stops just short of the place where if it were continued might reasonably be expected to uncover an address
. . . of the person on whom service is sought.

Loppnow v. Bielik, 2010 WI App 66, ¶ 10, 324 Wis. 2d 803, 783 N.W.2d 450 (third alteration in original) (citation omitted). The court also stated, “Although case law defining ‘reasonable diligence’ is sparse, § 801.11 requires the pursuit of any ‘leads or information reasonably calculated to make personal service possible.”’ Id. (citation omitted).

4

Some examples of reasonably diligent locating include contacting an authority’s human resources department for a record subject’s last known address, consulting with current employees who may be aware of updated contact information, or use of the internet or telephone directory.

5

These alternative methods of service are not required and not exclusive. Other alternative methods of service may also be used in such circumstances.

6

It should be noted that, pursuant to Wis. Stat. § 19.32(2), a record does not include “published materials in the possession of an authority other than a public library that are available for sale, or that are available for inspection at a public library.” Consequently, statutory notice is not required since published materials are not records.

7

Although, if, in response to future public records requests, an authority releases a record that a record subject augmented with written comments and documentation pursuant to Wis. Stat.
§ 19.356(9), the authority should also release the written comments and documentation.