OAG 7-14

¶ 14.

If Wis. Stat. § 19.356(9) exception were read to require notice regarding any record that mentions a public official’s name, the exception would almost swallow the rule. Although impossible to quantify, a large portion of records in the possession of authorities contain the name of a public official. For example, many state agencies include the name of their agency head on their letterhead and other documents. Requiring notice regarding any record bearing the public official’s name would require the authority to notify him and afford five days to augment such records. This would be an absurd result.

¶ 15.

“[L]egislative history is sometimes consulted to confirm or verify a plain-meaning interpretation.” Kalal, 271 Wis. 2d 633, ¶ 51 (citation omitted). Wisconsin Stat. § 19.356(9) was created by 2003 Wis. Act 47. The Prefatory Note to Act 47 indicates that the law partially codifies Woznicki v. Erickson, 202 Wis. 2d 178, 193-94, 549 N.W.2d 699 (1996), and Milwaukee Teachers’ Educational Ass’n v. Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999), cases concerned with the effect of the release of records on the interests of persons identified in the records and their privacy and reputation. 2003 Wis. Act 47, Joint Legislative Council Prefatory Note. A record that mentions a public official in passing, or simply lists his or her name, normally does not implicate such concerns.

¶ 16.

Regarding your second question, you ask whether Wis. Stat. § 19.356(9) is limited to the three circumstances spelled out in Wis. Stat. § 19.356(2)(a). Wisconsin Stat. § 19.356(2)(a) provides that any record subject, whether a public official or not, is entitled to notice when:

  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.

  2.  A record obtained by the authority through a subpoena or search warrant.

  3.  A record prepared by an employer other than an authority, if that record contains information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information.

¶ 17.

Wisconsin Stat. § 19.356(9) is plain on its face. The provision makes no reference back to the specific types of records described in Wis. Stat. § 19.356(2)(a). Because the statute does not include the limits under Wis. Stat. § 19.356(2)(a), those limits should not be imposed after the fact. See generally State v. Deborah J.Z., 228 Wis. 2d 468, 475-76, 596 N.W.2d 490 (Ct. App. 1999) (the omission of a provision from a similar statute concerning a related subject is significant in showing that a different intention existed). This interpretation is supported by the previous attorney general opinion. See OAG-1-06 at 8 (“Subsection (9)(a), however, does not restrict the duty to notify to the class of records listed in subsection (2)(a)[.]”).

¶ 18.

I conclude that a record mentioning a public official does not necessarily relate to a record subject within the meaning of Wis. Stat. § 19.356(9). Wisconsin Stat. § 19.356(9) is not limited, however, to the specific categories of records enumerated in Wis. Stat. § 19.356(2)(a).

            Sincerely,

            J.B. VAN HOLLEN

            Attorney General

JBVH:DPL:CG:ajw

1

All citations in this letter are to Wisconsin Statutes 2011-12.

2

As a general matter, this issue of notice and delay applies only after an authority applies the standard public records analysis and determines that it has responsive records that must be released. See Wisconsin Public Records Law Wis. Stat. §§ 19.31-19.39 Compliance Outline, DOJ, 42 (Sept. 2012), http://www.doj.state.wi.us/sites/default/files/dls/public-records-compliance-outline-2012.pdf.

3

The five days are business days. Wis. Stat. § 19.356(9).

4

  “Local public office” and “state public office” are defined for public records law purposes in Wis. Stat. § 19.32(1dm) and (4), which refer, respectively, to Wis. Stat. § 19.42(7w) and (13). This letter refers to these individuals as “public officials” for shorthand.

5

  The Joint Legislative Council’s Note to 2003 Wis. Act 47, § 4, the act creating Wis. Stat. § 19.356(9), describes the records covered by that section as ones “containing information relating to the employment of the record subject.” 2003 Wis. Act 47, § 4, Joint Legislative Council Note.