OAG 2-18

DNE

(See PDF for image)     STATE OF WISCONSIN

    DEPARTMENT OF JUSTICE



BRAD D. SCHIMEL

ATTORNEY GENERAL

Paul W. Connell

Deputy Attorney General

Delanie M. Breuer
Chief of Staff

114 East, State Capitol

P.O. Box 7857

Madison, WI 53707-7857

608/266-1221

TTY 1-800-947-3529

February 23, 2018

OAG–02–18

Attorney Grant F. Langley, et al.

Office of the City Attorney

Milwaukee City Hall

200 East Wells Street, Ste. 800

Milwaukee, WI 53202-8550

Dear Mr. Langley:

  The Wisconsin Department of Justice is in receipt of your September 6, 2016 letter, co-signed by nine other city attorneys and corporation counsel, in which you requested my opinion on the administration of Wis. Stat. § 19.356, part of the Wisconsin Public Record Law, Wis. Stat. §§ 19.31 to 19.39. Section 19.356 requires an authority to provide notice and an opportunity for judicial review of an authority’s decision to release a public record. Section 19.356 applies to a narrow class of record subjects.

The public records law authorizes requesters to inspect or obtain copies of “records” created or maintained by an “authority.” The public records law contains one of the strongest public policy statements found in the Wisconsin Statutes. The public records law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business.” Wis. Stat. § 19.31. While records are presumed to be open to public inspection and copying, the public’s right to access is not absolute. Statutes, the common law, and the public policy balancing test, which weighs the public interest in disclosure of a record against the public interest in nondisclosure, provide exceptions to the presumption. Portage Daily Register v. Columbia Cty. Sheriff’s Dep’t, 2008 WI App 30, ¶ 11,
308 Wis. 2d 357, 746 N.W.2d 525, 529 (citing Hathaway v. Joint Sch. Dist., No. 1,
116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984)).

Wisconsin Stat. § 19.356 establishes a general rule that an authority need not provide notice to a record subject prior to releasing a record in response to a public records request. It states, in part,

Except as authorized in this section or as otherwise provided by statute, no authority is required to notify a record subject prior to providing to a requester access to a record containing information pertaining to that record subject, and no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record.

Wis. Stat. § 19.356(1).

Wisconsin Stat. § 19.356(2) and (9) provide the exceptions to this general rule. Wisconsin Stat. § 19.356(2) requires an authority to serve written notice on “any record subject to whom the record pertains, either by certified mail or by personally serving” the record subject. Wis. Stat. § 19.356(2)(a). “Record subject” is defined as “an individual about whom personally identifiable information is contained in a record.” Wis. Stat. § 19.32(2g). Not every person mentioned in a record must receive notice. Record subjects entitled to notice must be a focus or target of the requested record in some direct way. See OAG 1-06 (Aug. 3, 2006), at 2-3.

Such notice only applies in three specific circumstances. Your questions concern the circumstance identified in Wis. Stat. § 19.356(2)(a)1, therefore, this opinion will not address the remaining two circumstances. Section 19.356(2)(a) states,

19.356(2)(a)Except as provided in pars. (b) to (d) and as otherwise authorized or required by statute, if an authority decides under s. 19.35 to permit access to a record specified in this paragraph, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on any record subject to whom the record pertains, either by certified mail or by personally serving the notice on the record subject. The notice shall briefly describe the requested record and include a description of the rights of the record subject under subs. (3) and (4). This paragraph applies only to the following records:

19.356(2)(a)1. 1. A record containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employmentrelated violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee’s employer.

Wis. Stat. § 19.356(2)(a)1. Upon receiving notice, the record subject has an opportunity to challenge the release of the record. Wis. Stat. § 19.356(3)-(5).

  Wisconsin Stat. § 19.356(9) provides that prior to permitting access to a “record containing information relating to a record subject who is an officer or employee of the authority holding a local public office or a state public office,” the authority must serve written notice of that decision on the record subject, either by certified mail or by personal service. Wis. Stat. § 19.356(9)(a). The record subject then has an opportunity to augment the record to be released within five days after receipt of the notice. Wis. Stat. § 19.356(9)(b).

  Some ambiguity exists in the language of Wis. Stat. § 19.356. I agree that proper administration of Wis. Stat. § 19.356 is a statewide concern, and guidance in this area will benefit authorities throughout Wisconsin. Your request seeks answers to four specific questions related to Wis. Stat. § 19.356, which I will address in turn.

QUESTION ONE

Does Wis. Stat. § 19.356(2)(a)1. apply if the record contains information related to a former employee? Or does Wis. Stat. § 19.356(2)(a)1. only apply if the record contains information related to a current employee?