Chapter 19

19.35 Annotation The John Doe statute, s. 968.26, which authorizes secrecy in John Doe proceedings, is a clear statement of legislative policy and constitutes a specific exception to the public records law. On review of a petition for a writ stemming from a secret John Doe proceeding, the court of appeals may seal parts of a record in order to comply with existing secrecy orders issued by the John Doe judge. State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 260 Wis. 2d 653, 660 N.W.2d 260, 01-3220.

19.35 Annotation Sub. (1) (am) is not subject to a balancing of interests. Therefore, the exceptions to sub. (1) (am) should not be narrowly construed. A requester who does not qualify for access to records under sub. (1) (am) will always have the right to seek records under sub. (1) (a), in which case the records custodian must determine whether the requested records are subject to a statutory or common law exception and, if not, whether the strong presumption favoring access and disclosure is overcome by some even stronger public policy favoring limited access or nondisclosure determined by applying a balancing test. Hempel v. City of Baraboo, 2005 WI 120, 284 Wis. 2d 162, 699 N.W.2d 551, 03-0500.

19.35 Annotation Sub. (1) (a) does not mandate that, when a meeting is closed under s. 19.85, all records created for or presented at the meeting are exempt from disclosure. The court must still apply the balancing test articulated in Linzmeyer, 2002 WI 84. Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, 06-1143.

19.35 Annotation A general request does not trigger the sub. (4) (c) review sequence. Sub. (4) (c) recites the procedure to be employed if an authority receives a request under sub. (1) (a) or (am). An authority is an entity having custody of a record. The definition does not include a reviewing court. Seifert v. School District, 2007 WI App 207, 305 Wis. 2d 582, 740 N.W.2d 177, 06-2071.

19.35 Annotation The open records law cannot be used to circumvent established principles that shield attorney work product, nor can it be used as a discovery tool. The presumption of access under sub. (1) (a) is defeated because the attorney work product qualifies under the “otherwise provided by law” exception. Seifert v. School District, 2007 WI App 207, 305 Wis. 2d 582, 740 N.W.2d 177, 06-2071.

19.35 Annotation Sub. (1) (am) 1. plainly allows a records custodian to deny access to one who is, in effect, a potential adversary in litigation or other proceeding unless or until required to do so under the rules of discovery in actual litigation. The balancing of interests under sub. (1) (a) must include examining all the relevant factors in the context of the particular circumstances and may include balancing the competing interests considered under sub. (1) (am) 1. when evaluating the entire set of facts and making its specific demonstration of the need for withholding the records. Seifert v. School District, 2007 WI App 207, 305 Wis. 2d 582, 740 N.W.2d 177, 06-2071.

19.35 Annotation The sub. (1) (am) analysis is succinct. There is no balancing. There is no requirement that the investigation be current for the exemption for records collected or maintained in connection with a complaint, investigation, or other circumstances that may lead to a court proceeding to apply. Seifert v. School District, 2007 WI App 207, 305 Wis. 2d 582, 740 N.W.2d 177, 06-2071.

19.35 Annotation “Record” in sub. (5) and s. 19.32 (2) 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, 06-2537.

19.35 Annotation Schopper, 210 Wis. 2d 208 (1997), does not permit a records custodian to deny a request based solely on the custodian’s assertion that the request could reasonably be narrowed, nor does Schopper require that the custodian take affirmative steps to limit the search as a prerequisite to denying a request under sub. (1) (h). The fact that the request may result in the generation of a large volume of records is not, in itself, a sufficient reason to deny a request as not properly limited, but at some point, an overly broad request becomes sufficiently excessive to warrant rejection under sub. (1) (h). State ex rel. Gehl v. Connors, 2007 WI App 238, 306 Wis. 2d 247, 742 N.W.2d 530, 06-2455.

19.35 Annotation 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. State ex rel. Gehl v. Connors, 2007 WI App 238, 306 Wis. 2d 247, 742 N.W.2d 530, 06-2455.

19.35 Annotation Foust, 165 Wis. 2d 429 (1991), held that a common law categorical exception exists for records in the custody of a district attorney’s office, not for records in the custody of a law enforcement agency. A sheriff’s department is legally obligated to provide public access to records in its possession, which cannot be avoided by invoking a common law exception that is exclusive to the records of another custodian. That the same record is in the custody of both the law enforcement agency and the district attorney does not change the outcome. To the extent that a sheriff’s department can articulate a policy reason why the public interest in disclosure is outweighed by the interest in withholding the particular record, it may properly deny access. Portage Daily Register v. Columbia County Sheriff’s Department, 2008 WI App 30, 308 Wis. 2d 357, 746 N.W.2d 525, 07-0323.

19.35 Annotation When requests are complex, municipalities should be afforded reasonable latitude in time for their responses. An authority should not be subjected to the burden and expense of a premature public records lawsuit while it is attempting in good faith to respond, or to determine how to respond, to a request. What constitutes a reasonable time for a response by an authority depends on the nature of the request, the staff and other resources available to the authority to process the request, the extent of the request, and other related considerations. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, 05-1473.

19.35 Annotation Employees’ personal emails were not subject to disclosure in this case. Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177, 08-0967.

19.35 Annotation Under sub. (3) (a) to (d), 2011 stats., the legislature provided four tasks for which an authority may impose fees on a requester: 1) reproduction and transcription; 2) photographing and photographic processing; 3) locating; and 4) mailing or shipping. For each task, an authority is permitted to impose a fee that does not exceed the actual, necessary, and direct cost of the task. The process of redacting information from a record does not fit into any of those four statutory tasks. Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, 341 Wis. 2d 607, 815 N.W.2d 367, 11-1112.

19.35 Annotation 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, 13-1187.

19.35 Annotation The record requester’s identity was relevant in this case. As a general proposition, the identity and purpose of the requester of public records is not a part of the balancing test to be applied in determining whether to release records. However, the determination of whether there is a safety concern that outweighs the presumption of disclosure is a fact-intensive inquiry determined on a case-by-case basis. State ex rel. Ardell v. Milwaukee Board of School Directors, 2014 WI App 66, 354 Wis. 2d 471, 849 N.W.2d 894, 13-1650.

19.35 Annotation In this case, although the commission’s responses did not state that no record existed, that omission did not impair the court’s ability to determine whether a statutory exemption to disclosure applied. Under the facts of the case, the commission lawfully denied the newspaper’s request because no responsive record existed at the time of the request. Journal Times v. City of Racine Board of Police & Fire Commissioners, 2015 WI 56, 362 Wis. 2d 577, 866 N.W.2d 563, 13-1715.

19.35 Annotation Sub. (4) (a) does not require immediate disclosure of a record. It allows a custodian a reasonable amount of time to respond to a public records request. Journal Times v. City of Racine Board of Police & Fire Commissioners, 2015 WI 56, 362 Wis. 2d 577, 866 N.W.2d 563, 13-1715.

19.35 Annotation There is no obligation to create a record in response to an open records request, and a requester is not entitled to the release of information in response to a public records request. Journal Times v. City of Racine Board of Police & Fire Commissioners, 2015 WI 56, 362 Wis. 2d 577, 866 N.W.2d 563, 13-1715.

19.35 Annotation The question asked by the balancing test is whether there is a risk to the public if information is released, not whether there is a risk to an individual if the information is released. Voces De La Frontera, Inc. v. Clarke, 2016 WI App 39, 369 Wis. 2d 103, 880 N.W.2d 417, 15-1152.

19.35 Annotation Reversed on other grounds. 2017 WI 16, 373 Wis. 2d 348, 891 N.W.2d 803, 15-1152.

19.35 Annotation In applying the balancing test to a requested video in this case, the court concluded that the public interest in preventing release of specific police and prosecution strategies and techniques being taught and used in Wisconsin outweighed the general legislative presumption that public records should be disclosed. Because the video consisted almost entirely of police tactics and specific prosecution strategies in cases involving sexual exploitation of children, disclosure would result in public harm—if local criminals learn the specific techniques and procedures used by police and prosecutors, the disclosed information could be used to circumvent the law. The public policy factors favoring nondisclosure thus overcame the presumption in favor of disclosure. Democratic Party of Wisconsin v. Department of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584, 14-2536.

19.35 Annotation The context of the records request, although not always relevant, was considered in this case. By asserting that, upon information and belief, several or all of the requested tapes in this case may have included offensive racial remarks and ethnic slurs, including but not limited to stereotyped accents, as well as sexist remarks, made by the attorney general when he was a district attorney, the language of the requester’s petition in this case for a writ of mandamus suggested a partisan purpose underlying the request. When weighed against the likely harm to law enforcement’s efforts to capture and convict sexual predators who target children, the justification offered for the request clearly did not tip the balance toward releasing the requested records. Democratic Party of Wisconsin v. Department of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584, 14-2536.

19.35 Annotation The common law exception to disclosure for a prosecutor’s case files discussed in Foust, 165 Wis. 2d 429 (1991), applied in this case. Under Foust, a district attorney’s closed files were not subject to the public records law based on the broad discretion a district attorney has in charging, the confidential nature of the contents of a file, and the threat disclosure poses to the orderly administration of justice. In this case, the prosecutor in charge of a sex extortion case discussed the prosecutor’s thought processes for charging and walked through the case in a recorded educational presentation for prosecutors. The presentation was in great respect the oral equivalent of a prosecutor’s closed case file. Democratic Party of Wisconsin v. Department of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584, 14-2536.

19.35 Annotation A video requested in this case discussed the victims of a sex extortion case and the devastating impact of those crimes. Disclosing the recording would have reignited interest in the case and allowed identification in the same way it occurred the first time around. There was sufficient factual detail in the recording to easily connect the dots to identify the dozens of victims, who would have been re-traumatized should this case have resulted in a repeat exposure of their identities almost a decade after those events occurred. Disclosure leading to revictimization would have run afoul of Wisconsin’s constitutional commitment to treating victims with “fairness, dignity and respect for their privacy” under article I, section 9m, of the Wisconsin Constitution. Democratic Party of Wisconsin v. Department of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584, 14-2536.

19.35 Annotation When the Wisconsin Employment Relations Commission (WERC) had received detailed and specific complaints of past coercion in other certification elections, a WERC employee lawfully performed the balancing test in concluding that the public interest in elections free from voter intimidation and coercion outweighed the public interest in favor of openness of public records. The public interest in certification elections that are free from intimidation and coercion is evidenced by the requirement that those elections be conducted by secret ballot and free from prohibited practices. The public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open public records under the circumstances presented in this case. Madison Teachers, Inc. v. Scott, 2018 WI 11, 379 Wis. 2d 439, 906 N.W.2d 436, 16-2214.

19.35 Annotation Sub. (3) (a) defers to other statutes that specifically authorize records custodians to charge fees for records that differ from the fees that the open records law itself authorizes. Section 343.24 (2m) grants the Department of Transportation (DOT) authority to charge parties for inspecting accident reports. Therefore, the requester was not entitled to free access to DOT’s database because both Wisconsin open records law and statutory authority permit DOT to charge access fees for certain records and because case law has held that the right to access records does not extend to the right to access databases. Media Placement Services, Inc. v. DOT, 2018 WI App 34, 382 Wis. 2d 191, 913 N.W.2d 224, 17-0791.

19.35 Annotation The second sentence in sub. (1) (b) only applies to a requester who appears in person. Lueders v. Krug, 2019 WI App 36, 388 Wis. 2d 147, 931 N.W.2d 898, 18-0431.

19.35 Annotation When a requester requests records in electronic form, providing access to only paper printouts of those records is not a satisfactory response to the request. Lueders v. Krug, 2019 WI App 36, 388 Wis. 2d 147, 931 N.W.2d 898, 18-0431.

19.35 Annotation In this case, the circuit court did not erroneously exercise its discretion when it ordered the plaintiff parents, if they wished to proceed, to file under seal and pursuant to a protective order an amended complaint stating their identities such that their identities would be disclosed only to the court and the attorneys for the litigants. Doe v. Madison Metropolitan School District, 2021 WI App 60, 399 Wis. 2d 102, 963 N.W.2d 823, 20-1032.

19.35 Annotation Affirmed. 2022 WI 65, 403 Wis. 2d 369, 976 N.W.2d 584, 20-1032.

19.35 Annotation A records custodian must determine whether the surrounding factual circumstances create an exceptional case not governed by the strong presumption of openness. An exceptional case exists when the facts are such that the public policy interest favoring nondisclosure outweigh the public policy interests favoring disclosure. The public has a strong interest in being informed about its public officials and whether those officials have engaged in misconduct. Those interests cannot be outweighed simply by the fact that an official played a minor role in an improper search. Milwaukee Deputy Sheriffs’ Ass’n v. County of Milwaukee County Clerk, 2021 WI App 80, 399 Wis. 2d 769, 967 N.W.2d 185, 20-2028.

19.35 Annotation In this case, the school district failed to meet its burden to demonstrate that the public interest in keeping parent email addresses secret—and preserving them solely for the district’s broad use—outweighed the strong public policy in favor of releasing these public records. Gierl v. Mequon-Thiensville School District, 2023 WI App 5, 405 Wis. 2d 757, 985 N.W.2d 116, 21-2190.

19.35 Annotation Specific reasons why each document warrants confidentiality are necessary to provide the requester with sufficient notice of the grounds for denial to enable the requester to prepare a challenge to the withholding. In this case, the custodian’s application of the balancing test fell short because it did not describe the records that were responsive to the requests and then apply the balancing test to each record individually to explain why it was not disclosed. The absence of record-specific policy reasons for denial was particularly problematic here, because the differing natures of the three documents implicated different levels of public interest. Furthermore, in failing to apply the balancing test to each document, the custodian effectively used a blanket or automatic denial rule that applied to all records related to certain types of complaints. A blanket rule is not a proper application of the balancing test. Wisconsin State Journal v. Blazel, 2023 WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450, 21-1196.

19.35 Annotation The presumption of the public records law is that members of the public are entitled to evaluate public records for themselves and are not required to trust in a governmental authority’s selective summaries. An authority’s statement about its own evaluation of the requested records and its own judgment about the public relevance of those records is no substitute for a proper response to a public records request. Wisconsin State Journal v. Blazel, 2023 WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450, 21-1196.

19.35 Annotation A legitimate public policy consideration for a records custodian to use in making possible redactions in the context of an investigation of a sexual harassment complaint can be the need to avoid creating chilling effects limiting complaints. But that proposition provides no support for declining to release even redacted versions of records. When victims and witnesses have a strong privacy interest in protecting their privacy, that public interest substantially outweighs the public interest in disclosure of their names. Wisconsin State Journal v. Blazel, 2023 WI App 18, 407 Wis. 2d 472, 991 N.W.2d 450, 21-1196.

19.35 Annotation Notice of Voting Eligibility forms used to make the report required under s. 54.25 (2) (c) 1. g. regarding restrictions to an individual’s voting rights as a result of a court’s finding of incompetency in a guardianship proceeding are court records pertinent to the finding of incompetency and therefore are barred from disclosure under s. 54.75 and the public records law. Wisconsin Voter Alliance v. Reynolds, 2023 WI App 66, 410 Wis. 2d 335, 1 N.W.3d 748, 22-1749.

19.35 Annotation A custodian may not require a requester to pay the cost of an unrequested certification. Unless the fee for copies of records is established by law, a custodian may not charge more than the actual and direct cost of reproduction. 72 Atty. Gen. 36.

19.35 Annotation Copying fees, but not location fees, may be imposed on a requester for the cost of a computer run. 72 Atty. Gen. 68.

19.35 Annotation Discussing the fee for copying public records. 72 Atty. Gen. 150.

19.35 Annotation Public records relating to employee grievances are not generally exempt from disclosure. Nondisclosure must be justified on a case-by-case basis. 73 Atty. Gen. 20.

19.35 Annotation Discussing the disclosure of an employee’s birthdate, sex, ethnic heritage, and handicapped status. 73 Atty. Gen. 26.

19.35 Annotation The Department of Regulation and Licensing may refuse to disclose records relating to complaints against health care professionals while the matters are merely “under investigation.” Good faith disclosure of the records will not expose the custodian to liability for damages. Prospective continuing requests for records are not contemplated by public records law. 73 Atty. Gen. 37.

19.35 Annotation Prosecutors’ case files are exempt from disclosure. 74 Atty. Gen. 4.

19.35 Annotation Discussing the relationship between the public records law and pledges of confidentiality in settlement agreements. 74 Atty. Gen. 14.

19.35 Annotation Discussing a computerized compilation of bibliographic records in relation to copyright law. A requester is entitled to a copy of a computer tape or a printout of information on the tape. 75 Atty. Gen. 133.

19.35 Annotation Ambulance records relating to medical history, condition, or treatment are confidential while other ambulance call records are subject to disclosure under the public records law. 78 Atty. Gen. 71.

19.35 Annotation Courts are likely to require disclosure of legislators’ mailing and distribution lists absent a factual showing that the public interest in withholding the records outweighs the public interest in their release. OAG 2-03.

19.35 Annotation If a legislator custodian decides that a mailing or distribution list compiled and used for official purposes must be released under the public records statute, the persons whose names, addresses, or telephone numbers are contained on the list are not entitled to notice and the opportunity to challenge the decision prior to release of the record. OAG 2-03.

19.35 Annotation Access Denied: How Woznicki v. Erickson Reversed the Statutory Presumption of Openness in the Wisconsin Open Records Law. Munro. 2002 WLR 1197.

19.356 19.356 Notice to record subject; right of action.

19.356(1) (1) 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.

19.356(2) (2) 

19.356(2)(a) (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.

19.356(2)(a)2. 2. A record obtained by the authority through a subpoena or search warrant.

19.356(2)(a)3. 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.

19.356(2)(b) (b) Paragraph (a) does not apply to an authority who provides access to a record pertaining to an employee to the employee who is the subject of the record or to his or her representative to the extent required under s. 103.13 or to a recognized or certified collective bargaining representative to the extent required to fulfill a duty to bargain or pursuant to a collective bargaining agreement under ch. 111.

19.356(2)(c) (c) Paragraph (a) does not apply to access to a record produced in relation to a function specified in s. 106.54 or 230.45 or subch. II of ch. 111 if the record is provided by an authority having responsibility for that function.

19.356(2)(d) (d) Paragraph (a) does not apply to the transfer of a record by the administrator of an educational agency to the state superintendent of public instruction under s. 115.31 (3) (a).

19.356(3) (3) Within 5 days after receipt of a notice under sub. (2) (a), a record subject may provide written notification to the authority of his or her intent to seek a court order restraining the authority from providing access to the requested record.

19.356(4) (4) Within 10 days after receipt of a notice under sub. (2) (a), a record subject may commence an action seeking a court order to restrain the authority from providing access to the requested record. If a record subject commences such an action, the record subject shall name the authority as a defendant. Notwithstanding s. 803.09, the requester may intervene in the action as a matter of right. If the requester does not intervene in the action, the authority shall notify the requester of the results of the proceedings under this subsection and sub. (5).

19.356(5) (5) An authority shall not provide access to a requested record within 12 days of sending a notice pertaining to that record under sub. (2) (a). In addition, if the record subject commences an action under sub. (4), the authority shall not provide access to the requested record during pendency of the action. If the record subject appeals or petitions for review of a decision of the court or the time for appeal or petition for review of a decision adverse to the record subject has not expired, the authority shall not provide access to the requested record until any appeal is decided, until the period for appealing or petitioning for review expires, until a petition for review is denied, or until the authority receives written notice from the record subject that an appeal or petition for review will not be filed, whichever occurs first.

19.356(6) (6) The court, in an action commenced under sub. (4), may restrain the authority from providing access to the requested record. The court shall apply substantive common law principles construing the right to inspect, copy, or receive copies of records in making its decision.

19.356(7) (7) The court, in an action commenced under sub. (4), shall issue a decision within 10 days after the filing of the summons and complaint and proof of service of the summons and complaint upon the defendant, unless a party demonstrates cause for extension of this period. In any event, the court shall issue a decision within 30 days after those filings are complete.

19.356(8) (8) If a party appeals a decision of the court under sub. (7), the court of appeals shall grant precedence to the appeal over all other matters not accorded similar precedence by law. An appeal shall be taken within the time period specified in s. 808.04 (1m).

19.356(9) (9) 

19.356(9)(a) (a) Except as otherwise authorized or required by statute, if an authority decides under s. 19.35 to permit 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 shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on the record subject, 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 par. (b).

19.356(9)(b) (b) Within 5 days after receipt of a notice under par. (a), a record subject may augment the record to be released with written comments and documentation selected by the record subject. Except as otherwise authorized or required by statute, the authority under par. (a) shall release the record as augmented by the record subject.

19.356 History History: 2003 a. 47; 2011 a. 84.

19.356 Note NOTE: 2003 Wis. Act 47, which created this section, contains extensive explanatory notes.

19.356 Annotation The right of a public employee to obtain de novo judicial review of an authority’s decision to allow public access to certain records granted by this section is no broader than the common law right previously recognized. It is not a right to prevent disclosure solely on the basis of a public employee’s privacy and reputational interests. The public’s interest in not injuring the reputations of public employees must be given due consideration, but it is not controlling. Local 2489 v. Rock County, 2004 WI App 210, 277 Wis. 2d 208, 689 N.W.2d 644, 03-3101.

19.356 Annotation An intervenor as of right under the statute is “a party” under sub. (8) whose appeal is subject to the time period specified in s. 808.04 (1m). The only time period referenced in s. 808.04 (1m) is 20 days. Zellner v. Herrick, 2009 WI 80, 319 Wis. 2d 532, 770 N.W.2d 305, 07-2584.

19.356 Annotation This section does not set forth the only course of action that the subject of a disclosure may engage in to prevent disclosure. Subs. (3) and (4) state that “a record subject may commence an action.” The plain language of the statute in no way discourages the subject of a records request from engaging in less litigious means to prevent disclosure nor does it prevent a records custodian from changing its mind. State ex rel. Ardell v. Milwaukee Board of School Directors, 2014 WI App 66, 354 Wis. 2d 471, 849 N.W.2d 894, 13-1650.

19.356 Annotation For challenges to decisions by authorities under the public records law to release records, as opposed to decisions by authorities to withhold records, the legislature has precluded judicial review except in defined circumstances. The right-of-action provision under sub. (1) unambiguously bars any person from seeking judicial review of an authority’s decision to release a record unless: 1) a provision within this section authorizes judicial review; or 2) a statute other than this section authorizes judicial review. Teague v. Van Hollen, 2016 WI App 20, 367 Wis. 2d 547, 877 N.W.2d 379, 14-2360.

19.356 Annotation A district attorney is not an “employee” as defined in s. 19.32 (1bg) and as used in sub. (2) (a) 1. A district attorney may not maintain an action under sub. (4) to restrain an authority from providing access to requested records when the requested records do not fall within the sub. (2) (a) 1. exception to the general rule that a “record subject” is not entitled to notice or pre-release judicial review of the decision of an authority to provide access to records pertaining to that record subject. Moustakis v. Department of Justice, 2016 WI 42, 368 Wis. 2d 677, 880 N.W.2d 142, 14-1853.

19.356 Annotation Sub. (5) applies to an “authority” and does not preclude a court from providing limited access to the requested records on an attorney’s eyes-only basis for purposes of briefing a case before the court. Section 19.37 (1) (a), which applies when a party seeks release of records in an action for mandamus, provides guidance. Whether the action seeks release or an injunction, the need for limited review by a party who intervenes by right, in order to ensure fair and fully informed adjudication of the dispute, is equally applicable. Hagen v. Board of Regents, 2018 WI App 43, 383 Wis. 2d 567, 916 N.W.2d 198, 17-2058.

19.356 Annotation Sub. (1) clearly abrogates the common law rules for pre-release notice and judicial review. It does not distinguish between different categories of individuals or records; it states a general rule that applies to all claims for pre-release judicial review and provides two types of exceptions. Wisconsin Manufacturers & Commerce v. Evers, 2022 WI 38, 401 Wis. 2d 699, 977 N.W.2d 374, 20-2081.

19.356 Annotation This section makes clear that no one has a right to block the release of a public record unless otherwise specified. The Declaratory Judgments Act, s. 806.04, does not fall within the exception to sub. (1) for statutes that “otherwise provide” for pre-release judicial review of records responses. Wisconsin Manufacturers & Commerce v. Evers, 2022 WI 38, 401 Wis. 2d 699, 977 N.W.2d 374, 20-2081.

19.356 Annotation In this case, the employer did not have the right under the sub. (2) (a) 3. exception to block the release by the sheriff’s office of the requested surveillance video footage from the employer’s parking garage. The employer did not qualify as a record subject, as defined in s. 19.32 (2g), because the employer was not an “individual” about whom personally identifiable information was contained in the record. Journal Sentinel, Inc. v. Milwaukee County Sheriff’s Office, 2022 WI App 44, 404 Wis. 2d 328, 979 N.W.2d 609, 21-0615.

19.356 Annotation Sub. (2) (a) 1. must be interpreted as requiring notification when an authority proposes to release records in its possession that are the result of an investigation by an employer into a disciplinary or other employment matter involving an employee, but not when there has been an investigation of possible employment-related violation by the employee and the investigation is conducted by some entity other than the employee’s employer. OAG 1-06.

19.356 Annotation Sub. (2) (a) 2. is unambiguous. If an authority has obtained a record through a subpoena or a search warrant, it must provide the requisite notice before releasing the records. The duty to notify, however, does not require notice to every record subject who happens to be named in the subpoena or search warrant records. Under sub. (2) (a), DCI must serve written notice of the decision to release the record to any record subject to whom the record pertains. OAG 1-06.

19.356 Annotation To the extent any requested records proposed to be released are records prepared by a private employer and those records contain information pertaining to one of the private employer’s employees, sub. (2) (a) 3. does not allow release of the information without obtaining authorization from the individual employee. OAG 1-06.

19.356 Annotation Sub. (9) does not require advance notification and a five-day delay before releasing a record that mentions the name of a person holding state or local public office in any way. A record mentioning the name of a public official does not necessarily relate to that public official within the meaning of sub. (9) (a). Sub. (9) is not limited, however, to the specific categories of records enumerated in sub. (2) (a). OAG 7-14.

19.356 Annotation The use of the phrase “is created” in sub. (2) (a) 1. implies that the status of the record subject should be consistent with when the record was created. Therefore, if the record subject is an employee at the time the record is created, the record subject is entitled to notice even if the employee is no longer employed by the authority at the time the authority receives the request. OAG 2-18.

19.356 Annotation Sub. (9) does not apply when a record contains information relating to a record subject who is an officer or employee who formerly held a local or state public office. The provision only applies when an officer or employee of the authority currently holds a local or state public office. OAG 2-18.

19.356 Annotation Should service fail in the manner specifically required in subs. (2) (a) 1. and (9) (a), after reasonable diligence, the alternatives to personal service in s. 801.11 may be used to provide notice to record subjects. Section 801.11 (1) appears reasonable and consistent with the public records law’s purposes with the exception of the publication requirement. An authority may leave a copy of the notice at the record subject’s usual place of abode in a manner substantially similar to s. 801.11 (1) (b). 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 s. 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. OAG 2-18.

19.36 19.36 Limitations upon access and withholding.

19.36(1) (1) Application of other laws. Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure under s. 19.35 (1), except that any portion of that record which contains public information is open to public inspection as provided in sub. (6).