1. Public Records Law Essentials Attorney Philip Freeburg, UW-Extension, Local Government Center Reviewed by Attorney Claire Silverman, League of Wis. Municipalities Legal Counsel Copyright © 2014 by the Board of Regents of the University of Wisconsin System doing business as the Division of Cooperative Extension of the University of Wisconsin-Extension. All Rights Reserved.

2. Objectives Essentials of – Policy – Important Terms and Concepts of Wisconsin Public Records Law Such as “Authority”, “Custodian” and “Record” – Request, Response and Costs – Enforcement

3. Policy Presumption – Complete access – Consistent with the conduct of government business Denial of access – – Contrary to public interest – Only in exceptional cases – Wis. Stat. §19.31

4. Policy The goal of an informed public requires giving the public: – “[T]he greatest possible information regarding affairs of government…” – Wis. Stat. §19.31

5. Definition “Public Record” A public record is a “record” of an “authority.”

6. “Record” Any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved Regardless of physical form or characteristics Which has been created by or kept by an authority – Wis. Stat. §19.32(2)

7. “Authority” Any of the following have custody of a “record” : – State or Local Office – Elective Official – Agency – Board, Commission, Council or Department – Quasi Governmental Corporations – Sub-units Wis. Stat. § 19.32(1)

8. Electronic Records Electromagnetic information or electronically generated or stored data are “Records” “Records” include but are not limited to – Recordings, tapes, optical disks, and any other medium on which electronically generated or stored data is recorded or preserved. Wis. Stats. §19.35(2) amended by 2013 Act 171

9. Not a Record Drafts, notes, preliminary computations – prepared by originator for their own use or prepared by employee for someone for whom they work Purely personal property that do not relate to custodian’s office – Example, Personal email Exceptions are narrowly construed

10. Question Fromage County Chair Barry Truman has received a request for letters he wrote while courting Bess, his wife. Bess saved all of Truman’s letters in her dresser drawer, but she is not a public official. Are the letters a record under Public Records Law?

11. Letters to Bess a record? A.Yes, because created by Truman, an authority - he is an elected official B.No, because the letters are not records kept at the courthouse C.Probably not, if Truman was not an elected official while courting Bess D.No, because they were created for personal use unrelated to County business E.C & D

12. Letters to Bess a record? A.Yes, because created by Truman, an authority - he is an elected official B.No, because the letters are not records kept at the courthouse C.Probably not, if Truman was not an elected official while courting Bess D.No, because they were created for personal use unrelated to County business E.C & D

13. Letters to Bess a record? A.Yes, because created by Truman, an authority - he is an elected official B.No, because the letters are not records kept at the courthouse C.Probably not, if Truman was not an elected official while courting Bess D.No, because they were created for personal use unrelated to County business E.C & D

14. Which of the following is NOT a Record A.Truman’s emails to Board members marked “draft” B.“Fromage County Chair” Facebook page which can only be viewed by “friends” C.Truman’s own meeting notes D.Copy of letter to county resident about a bridge project E.Closed meeting minutes

15. Which of the following is NOT a Record A.Truman’s emails to Board members marked “draft” B.“Fromage County Chair” Facebook page which can only be viewed by “friends” C.Truman’s own meeting notes D.Copy of letter to county resident about a bridge project E.Closed meeting minutes

16. Is this a record? Supervisor receives a request for emails relating to the county board matters sent from home computer for last 3 months. A.This is a Record. B.This is not a record.

17. Is this a record? Supervisor receives a request for emails relating to the county board matters sent from home computer for last 3 months. A.This is a Record. B.This is not a record.

18. Opinion: Are Text Messages to other Board members a record? A.LOL B.Yes C.No D.OMG

19. For the “Record”… Contractor Records produced and collected under contract with an authority are public records Law covers access to records, not answers to questions Reminder: Content and substance control, not location and format

20. Custodian Maintains Records and makes decisions regarding access Elected officials are custodians unless an employee has been designated If none, highest rank officer or chief administrative officer Statutes designates clerks as record keepers

21. Notice & Hours Notice – Custodian identity – Times and locations to inspect records – No regular hours, advance notice required to inspect – Costs Hours – Anytime if regular hours – No regular hours: at least 2 hours per week; or Permit access on 48 hours notice

22. Does your County have a policy that is posted? A.Yes B.No C.I do not know

23. Request Any person can request inspection of or a copy of record Need not identify self, purpose or motive Oral or written No specific form required

24. Sufficient Request Reasonably describe the record or information – Wis. Stat. §19.35(1)(h) Reasonable as to time and subject matter Custodian should not have to guess Cannot so burden custodian so that normal office function are impaired

25. Question 1 Is this a Sufficient Request? All 911 calls for a 3 hour period of a certain date, over all 60 channels used by 911 that will result in 180 hours of audio tape A.Yes, it is sufficient B.No, it is not sufficient

26. Question 2 Is this a Sufficient Request? Request to inspect County Administrator's hard drive A.Yes B.No

27. Question 2 Is this a Sufficient Request? Request to inspect County Administrator's hard drive A.Yes B.No

28. Question 3 Is this a Sufficient Request Documents relating to all zoning matters for 2011 through 2012. A.Yes, that is sufficient B.B. No it is not sufficient

29. Responding to Request “As soon as practicable and without delay” – Wis. Stat. ¶19.35(4) Dept. of Justice recommends 10 days for simple response Penalties for “arbitrary and capricious delay”

30. Responding to Request Only records that exist at time of request required to be produced Records; not answers to questions May transcribe audio records May provide a photocopy or allow inspection No provision in Law for continuing requests

31. Limits on Access Statutes Published Court Decisions Balancing Test If parts of record are not subject to disclosure, but other parts are, – the other parts must be disclosed – Remove parts not subject to disclosure

32. Balancing Test – Does public interest in nondisclosure outweigh public interest in disclosure – Specific policy reason – Closed session exceptions possible policy reasons – Case-by-case No “Bright Line Rules”

33. Request Analysis 1.Does a responsive record exist? 2.Is there an absolute right to access? 3.Is access absolutely denied? 4.Apply balancing test. WI Justice Department

34. Denial of Access Oral request may be denied orally – Unless demand made for reasons in written statement – Due 5 days Written Request denial – Required in writing – Explain reasons – Advise denial is subject of court review

35. Denial Explanation Sufficient under Public Records Law Specific enough for requester to understand Basis and Limit of Court Review

36. Cost and Fees An authority may recover actual, necessary and direct costs of: – Copying or reproduction – Location, if exceeds $50 – Computer programming Wis. Stat. 19.35(3) Cannot charge cost of redacting Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65.

37. Personally Identifiable Information Rights if record contains your Personally Identifiable Information – Exceptions for investigations, security concerns or records in un-indexed series Ability to request correction of personal information or file statement Public employees and officials right to notice of release of certain records

38. Enforcement Court ordered disclosure – Mandamus Possible payment of requestor’s attorney fees and costs Punitive damages for arbitrary delay or denial Loss of public confidence in unit of government

40. More information UWEX Local Government Center – Fact Sheet 7 In your materials Attorney General Wisconsin Statutes

41. Public Records Law Essentials Attorney Philip Freeburg, UW-Extension, Local Government Center 610 Langdon St. Madison, WI 53703 (608) 262-5103 philip.freeburg@uwex.edu