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. 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. 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
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