History: 1981 c. 335
An agency cannot promulgate an administrative rule that creates an exception to the open records law. Chvala v. Bubolz, 204 Wis. 2d 82
, 552 N.W.2d 892
(Ct. App. 1996), 95-3120
Although the requester referred to the federal Freedom of Information Act, a letter that clearly described open records and had all the earmarkings of an open records request was in fact an open records request and triggered, at minimum, a duty to respond. ECO, Inc. v. City of Elkhorn, 2002 WI App 302
, 259 Wis. 2d 276
, 655 N.W.2d 510
The public records law addresses the duty to disclose records; it does not address the duty to retain records. An agency's alleged failure to keep sought-after records may not be attacked under the public records law. Section 19.21 relates to records retention and is not a part of the public records law. Gehl v. Connors, 2007 WI App 238
, 306 Wis. 2d 247
, 742 N.W.2d 530
Absent a clear statutory exception, a limitation under the common law, or an overriding public interest in keeping a public record confidential, the public records law shall be construed in every instance with a presumption of complete public access. As the denial of public access generally is contrary to the public interest, access may be denied only in an exceptional case. An exceptional case exists when the facts are such that the public policy interests favoring nondisclosure outweigh the public policy interests favoring disclosure, notwithstanding the strong presumption favoring disclosure. Hagen v. Board of Regents, 2018 WI App 43
, 383 Wis. 2d 567
, 916 N.W.2d 198
The Wisconsin Public Records Law. De la Mora. 67 MLR 65 (1983).
Toward a More Open and Accountable Government: A Call for Optimal Disclosure Under the Wisconsin Open Records Law. Roang. 1994 WLR 719.
Wisconsin's Public-Records Law: Preserving the Presumption of Complete Public Access in the Age of Electronic Records. Holcomb & Isaac. 2008 WLR 515.
Municipal responsibility under the Wisconsin revised public records law. Maloney. WBB Jan. 1983.
The public records law and the Wisconsin Department of Revenue. Boykoff. WBB Dec. 1983.
The Wisconsin Open Records Act: An update on issues. Trubek & Foley. WBB Aug. 1986.
Getting the Best of Both Worlds: Open Government and Economic Development. Westerberg. Wis. Law. Feb. 2009.
“Authority" means any of the following having custody of a record: a state or local office, elective official, agency, board, commission, committee, council, department or public body corporate and politic created by the constitution or by any law, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a special purpose district; any court of law; the assembly or senate; a nonprofit corporation which receives more than 50 percent of its funds from a county or a municipality, as defined in s. 59.001 (3)
, and which provides services related to public health or safety to the county or municipality; a university police department under s. 175.42
; or a formally constituted subunit of any of the foregoing.
“Committed person" means a person who is committed under ch. 51
and who is placed in an inpatient treatment facility, during the period that the person's placement in the inpatient treatment facility continues.
“Elective official" means an individual who holds an office that is regularly filled by vote of the people.
“Employee" means any individual who is employed by an authority, other than an individual holding local public office or a state public office, or any individual who is employed by an employer other than an authority.
“Incarcerated person" means a person who is incarcerated in a penal facility or who is placed on probation and given confinement under s. 973.09 (4)
as a condition of placement, during the period of confinement for which the person has been sentenced.
“Inpatient treatment facility" means any of the following:
A facility or unit for the institutional care of sexually violent persons specified under s. 980.065
The Milwaukee County mental health complex established under s. 51.08
“Local public office" has the meaning given in s. 19.42 (7w)
, and also includes any appointive office or position of a local governmental unit in which an individual serves as the head of a department, agency, or division of the local governmental unit, but does not include any office or position filled by a municipal employee, as defined in s. 111.70 (1) (i)
“Penal facility" means a state prison under s. 302.01
, county jail, county house of correction or other state, county or municipal correctional or detention facility.
“Person authorized by the individual" means the parent, guardian, as defined in s. 48.02 (8)
, or legal custodian, as defined in s. 48.02 (11)
, of an individual who is a child, as defined in s. 48.02 (2)
; the guardian of an individual adjudicated incompetent in this state; the personal representative or spouse of an individual who is deceased; or any person authorized, in writing, by an individual to act on his or her behalf.
“Personally identifiable information" has the meaning specified in s. 19.62 (5)
“Record" means any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority. “Record" includes, but is not limited to, handwritten, typed, or printed pages, maps, charts, photographs, films, recordings, tapes, optical discs, and any other medium on which electronically generated or stored data is recorded or preserved. “Record" does not include drafts, notes, preliminary computations, and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working; materials that are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent, or bequest; and 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.
“Record subject" means an individual about whom personally identifiable information is contained in a record.
“Requester" means any person who requests inspection or copies of a record, except a committed or incarcerated person, unless the person requests inspection or copies of a record that contains specific references to that person or his or her minor children for whom he or she has not been denied physical placement under ch. 767
, and the record is otherwise accessible to the person by law.
“Special purpose district" means a district, other than a state governmental unit or a county, city, village, or town, that is created to perform a particular function and whose geographic jurisdiction is limited to some portion of this state.
NOTE: 2003 Wis. Act 47
, which affects this section, contains extensive explanatory notes.
A study commissioned by the corporation counsel and used in various ways was not a “draft" under sub. (2), although it was not in final form. A document prepared other than for the originator's personal use, although in preliminary form or marked “draft," is a record. Fox v. Bock, 149 Wis. 2d 403
, 438 N.W.2d 589
A settlement agreement containing a pledge of confidentiality and kept in the possession of a school district's attorney was a public record subject to public access. Journal/Sentinel, Inc. v. School Board, 186 Wis. 2d 443
, 521 N.W.2d 165
(Ct. App. 1994).
Individuals confined as sexually violent persons under ch. 980 are not “incarcerated" under sub. (1c). Klein v. Wisconsin Resource Center, 218 Wis. 2d 487
, 582 N.W.2d 44
(Ct. App. 1998), 97-0679
A nonprofit corporation that receives 50 percent of its funds from a municipality or county is an authority under sub. (1) regardless of the source from which the municipality or county obtained those funds. Cavey v. Walrath, 229 Wis. 2d 105
, 598 N.W.2d 240
(Ct. App. 1999), 98-0072
A person aggrieved by a request made under the open records law has standing to raise a challenge that the requested materials are not records because they fall within the exception for copyrighted material under sub. (2). Under the facts of this case, the language of sub. (2), when viewed in light of the fair use exception to copyright infringement, applied so that the disputed materials were records within the statutory definition. Zellner v. Cedarburg School District, 2007 WI 53
, 300 Wis. 2d 290
, 731 N.W.2d 240
“Record" in sub. (2) and s. 19.35 (5) does not include identical copies of otherwise available records. A copy that is not different in some meaningful way from an original, regardless of the form of the original, is an identical copy. If a copy differs in some significant way for purposes of responding to an open records request, then it is not truly an identical copy, but instead a different record. Stone v. Board of Regents, 2007 WI App 223
, 305 Wis. 2d 679
, 741 N.W.2d 774
A municipality's independent contractor assessor was not an authority under sub. (1) and was not a proper recipient of an open records request. In this case, only the municipalities themselves were the “authorities" for purposes of the open records law. Accordingly, only the municipalities were proper recipients of the relevant open records requests. WIREdata, Inc. v. Village of Sussex, 2008 WI 69
, 310 Wis. 2d 397
, 751 N.W.2d 736
A corporation is quasi-governmental if, based on the totality of circumstances, it resembles a governmental corporation in function, effect, or status, requiring a case-by-case analysis. Here, a primary consideration was that the body was funded exclusively by public tax dollars or interest thereon. Additionally, its office was located in the municipal building, it was listed on the city website, the city provided it with clerical support and office supplies, all its assets revert to the city if it ceases to exist, its books are open for city inspection, the mayor and another city official are directors, and it had no clients other than the city. State v. Beaver Dam Area Development Corp., 2008 WI 90
, 312 Wis. 2d 84
, 752 N.W.2d 295
Redacted portions of emails, who sent the emails, and where they were sent from were not “purely personal" and therefore subject to disclosure. Public awareness of who is attempting to influence public policy is essential for effective oversight of our government. Whether a communication is sent to a public official from a source that appears associated with a particular unit of government, a private entity, or a nonprofit organization, or from individuals who may be associated with a specific interest or particular area of the state, from where a communication is sent further assists the public in understanding who is attempting to influence public policy and why. John K. MacIver Institute for Public Policy, Inc. v. Erpenbach, 2014 WI App 49
, 354 Wis. 2d 61
, 848 N.W.2d 862
To be a “quasi-governmental corporation" under sub. (1) an entity must first be a corporation. To hold that the term “quasi-governmental corporation" includes an entity that is not a corporation would effectively rewrite the statute to eliminate the legislature's use of the word corporation. Wisconsin Professional Police Ass'n v. Wisconsin Counties Ass'n, 2014 WI App 106
, 357 Wis. 2d 687
, 855 N.W.2d 715
“Notes" in sub. (2) covers a broad range of frequently created, informal writings. Documents found to be notes in this case were mostly handwritten and at times barely legible. They included copies of post-it notes and telephone message slips, and in other ways appeared to reflect hurried, fragmentary, and informal writing. A few documents were in the form of draft letters, but were created for and used by the originators as part of their preparation for, or as part of their processing after, interviews that they conducted. Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2015 WI App 53
, 364 Wis. 2d 429
, 867 N.W.2d 825
The exception from the definition of “record" in sub. (2) of notes “prepared for the originator's personal use" may apply to notes that are created or used in connection with government work and with a governmental purpose. Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2015 WI App 53
, 364 Wis. 2d 429
, 867 N.W.2d 825
A district attorney is employed by an authority and holds a state public office and therefore is not an “employee" within the meaning of sub. (1bg). Moustakis v. Department of Justice, 2016 WI 42
, 368 Wis. 2d 677
, 880 N.W.2d 142
Each case involving an alleged quasi-governmental corporation must be decided on the particular facts presented. An entity is a quasi-governmental corporation if, based on the totality of the circumstances, the entity resembles a governmental corporation in function, effect, or status. Accordingly, courts must consider a nonexhaustive list of factors, with no single factor being outcome determinative. The five factors that guided the supreme court's conclusion in Beaver Dam Area Development Corp.
, 2008 WI 90
, are: 1) whether the entity's funding comes from predominately public or private sources; 2) whether the entity serves a public function; 3) whether the entity appears to the public to be a government entity; 4) the degree to which the entity is subject to government control; and 5) the amount of access governmental bodies have to the entity's records.
Flynn v. Kemper Center, Inc., 2019 WI App 6
, 385 Wis. 2d 811
, 924 N.W.2d 218
“Records" must have some relation to the functions of the agency. 72 Atty. Gen. 99
Discussing the treatment of drafts under the public records law. 77 Atty. Gen. 100
Applying Open Records Policy to Wisconsin District Attorneys: Can Charging Guidelines Promote Public Awareness? Mayer. 1996 WLR 295.
Legal custodians. 19.33(1)(1)
An elective official is the legal custodian of his or her records and the records of his or her office, but the official may designate an employee of his or her staff to act as the legal custodian.
The chairperson of a committee of elective officials, or the designee of the chairperson, is the legal custodian of the records of the committee.
The cochairpersons of a joint committee of elective officials, or the designee of the cochairpersons, are the legal custodians of the records of the joint committee.
Every authority not specified in subs. (1)
shall designate in writing one or more positions occupied by an officer or employee of the authority or the unit of government of which it is a part as a legal custodian to fulfill its duties under this subchapter. In the absence of a designation the authority's highest ranking officer and the chief administrative officer, if any, are the legal custodians for the authority. The legal custodian shall be vested by the authority with full legal power to render decisions and carry out the duties of the authority under this subchapter. Each authority shall provide the name of the legal custodian and a description of the nature of his or her duties under this subchapter to all employees of the authority entrusted with records subject to the legal custodian's supervision.
Notwithstanding sub. (4)
, if an authority specified in sub. (4)
or the members of such an authority are appointed by another authority, the appointing authority may designate a legal custodian for records of the authority or members of the authority appointed by the appointing authority, except that if such an authority is attached for administrative purposes to another authority, the authority performing administrative duties shall designate the legal custodian for the authority for whom administrative duties are performed.
The legal custodian of records maintained in a publicly owned or leased building or the authority appointing the legal custodian shall designate one or more deputies to act as legal custodian of such records in his or her absence or as otherwise required to respond to requests as provided in s. 19.35 (4)
. This subsection does not apply to members of the legislature or to members of any local governmental body.
The designation of a legal custodian does not affect the powers and duties of an authority under this subchapter.
No elective official of a legislative body has a duty to act as or designate a legal custodian under sub. (4)
for the records of any committee of the body unless the official is the highest ranking officer or chief administrative officer of the committee or is designated the legal custodian of the committee's records by rule or by law.
History: 1981 c. 335
; 2013 a. 171
The right to privacy law, s. 895.50 [now s. 995.50], does not affect the duties of a custodian of public records under former s. 19.21, 1977 stats. 68 Atty. Gen. 68.
Procedural information; access times and locations. 19.34(1)(1)
Each authority shall adopt, prominently display and make available for inspection and copying at its offices, for the guidance of the public, a notice containing a description of its organization and the established times and places at which, the legal custodian under s. 19.33
from whom, and the methods whereby, the public may obtain information and access to records in its custody, make requests for records, or obtain copies of records, and the costs thereof. The notice shall also separately identify each position of the authority that constitutes a local public office or a state public office. This subsection does not apply to members of the legislature or to members of any local governmental body.
Each authority which maintains regular office hours at the location where records in the custody of the authority are kept shall permit access to the records of the authority at all times during those office hours, unless otherwise specifically authorized by law.
Each authority which does not maintain regular office hours at the location where records in the custody of the authority are kept shall:
Permit access to its records upon at least 48 hours' written or oral notice of intent to inspect or copy a record; or
Establish a period of at least 2 consecutive hours per week during which access to the records of the authority is permitted. In such case, the authority may require 24 hours' advance written or oral notice of intent to inspect or copy a record.
An authority imposing a notice requirement under par. (b)
shall include a statement of the requirement in its notice under sub. (1)
, if the authority is required to adopt a notice under that subsection.
If a record of an authority is occasionally taken to a location other than the location where records of the authority are regularly kept, and the record may be inspected at the place at which records of the authority are regularly kept upon one business day's notice, the authority or legal custodian of the record need not provide access to the record at the occasional location.
NOTE: 2003 Wis. Act 47
, which affects this section, contains extensive explanatory notes.
In ss. 19.33
, when a time period is provided for performing an act, whether the period is expressed in hours or days, the whole of Saturday, Sunday, and any legal holiday, from midnight to midnight, shall be excluded in computing the period.
History: 2003 a. 47
NOTE: 2003 Wis. Act 47
, which creates this section, contains extensive explanatory notes.
Access to records; fees. 19.35(1)(a)(a)
Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85
are indicative of public policy, but may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33
makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.
In addition to any right under par. (a)
, any requester who is an individual or person authorized by the individual has a right to inspect any personally identifiable information pertaining to the individual in a record containing personally identifiable information that is maintained by an authority and to make or receive a copy of any such information. The right to inspect or copy information in a record under this paragraph does not apply to any of the following:
Any record containing personally identifiable information that is collected or maintained in connection with a complaint, investigation or other circumstances that may lead to an enforcement action, administrative proceeding, arbitration proceeding or court proceeding, or any such record that is collected or maintained in connection with such an action or proceeding.
Any record containing personally identifiable information that, if disclosed, would do any of the following:
Endanger the security, including the security of the population or staff, of any state prison under s. 302.01
, jail, as defined in s. 165.85 (2) (bg)
, juvenile correctional facility, as defined in s. 938.02 (10p)
, secured residential care center for children and youth, as defined in s. 938.02 (15g)
, mental health institute, as defined in s. 51.01 (12)
, center for the developmentally disabled, as defined in s. 51.01 (3)
, or facility, specified under s. 980.065
, for the institutional care of sexually violent persons.
Compromise the rehabilitation of a person in the custody of the department of corrections or detained in a jail or facility identified in subd. 2. c.
Any record that is part of a records series, as defined in s. 19.62 (7)
, that is not indexed, arranged or automated in a way that the record can be retrieved by the authority maintaining the records series by use of an individual's name, address or other identifier.