November/December 2016 Issue

Also in this issue: Seventh Circuit Sides with Cities on Taxicab Deregulation     |     Federal Court Upholds a Provision in Wisconsin’s Right-To-Work Law     |     Supreme Court To Hear Case on Whether Internal Management Committee Meetings Are Subject to Open Records Law     |     WERC Announces Revised CPI-U

Responding to Requests for Records under the Public Records Law

Rick Verstegen | 10.31.16

Responding to requests for records under the Wisconsin Public Records Law is an integral part of duties for officers within municipalities. Such responses, however, must follow important steps in order to be fully compliant with the Public Records Law. This article provides a brief overview of the various steps that should take place in responding to such requests.

An important initial step after receiving a request for records is to identify the relevant ordinances or policies that may dictate any response. These ordinances or policies are important because they may include provisions that are different than existing law. Further, such ordinances or policies usually identify the legal custodian of records. The request should be forwarded to the legal custodian’s attention because the legal custodian is vested with the full legal power to render decisions and carry out the municipality’s statutory public records responsibilities. 

The next step in responding to any records request is to identify the manner and the time limits of a required response. Requests for records do not have to be made in writing, and as a result, oral requests must be considered. Officials cannot require requesters to put requests in writing, although they can ask the requester to provide a written request so that it is clear as to the exact records being requested. A municipality must ​“as soon as practicable and without delay” either fill the request or notify the requester of the determination to deny the request in whole or in part and the reasons therefore. The Department of Justice has stated that ten days generally is a reasonable time for a response, although this is dependent on several factors, including the press of other business. 

After this step, it is important to analyze the request and gather all documents within the scope of the request. A request which reasonably describes the information or record requested is sufficient. A request for a record without a reasonable limitation as to subject matter or length of time does not constitute a sufficient request. The municipality is not required to create a new record by extracting information from existing records and compiling the information in a new format, and a request can be denied if the information sought is not contained in a record. 

Next, a legal custodian should determine whether the document sought is a ​“record.” A ​“record” is broadly defined to include “[a]ny 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 or is being kept by an authority.” There are certain documents that fall outside of this broad definition, including drafts, notes, and like materials prepared for the originator’s personal use. Therefore, it is important to determine whether the type of document requested is even a ​“record” within the definition; if it is not a ​“record,” the request can be denied. 

After determining whether something is a record, the legal custodian must then determine whether the record is subject to disclosure. The Wisconsin legislature has directed public entities to construe the Public Records Law ​“with a presumption of complete public access” consistent with the public policy that ​“all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Despite this presumption of public access, there are certain statutory provisions and case law limitations that may exempt the records from disclosure. Further, legal custodians must generally apply a balancing test before permitting disclosure, weighing the public’s interest in nondisclosure of the information against the public’s interest in disclosure, and this balancing test may limit disclosure. However, a record may need to be disclosed in part, if only part of the record is exempt from disclosure. 

If the determination is made to disclose the records, the legal custodian must then take two additional steps. First, the legal custodian must determine whether to charge for fees (this decision can be made earlier in the process, but it is most often addressed here). In this respect, the legal custodian can charge for various fees, such as location fees (if over $50.00) and copying costs. A records custodian can also demand payment of fees in advance if fees exceed $5.00. Fees may not exceed the actual, necessary and direct costs to the municipality, and fees may not be charged to redact information from records. Second, the legal custodian must determine whether any person is entitled to notice of the disclosure of the record. The general rule is that no notification is required, but there are certain exceptions where notice must be provided to a ​“record subject” prior to providing a requester with access to a record. Legal counsel should be contacted in these situations. 

The final step for any records request is either to disclose the record (which should be accompanied by a cover letter) or to not disclose the record and draft a denial letter. If denying the request, even in part, the denial letter must be sufficiently specific as to the reasons for denial. Any reason supporting the denial that is not properly raised in the letter might not be considered in any subsequent court challenge. The denial letter must also inform the requestor that he or she may seek review of the denial by the attorney general or a court. 

Compliance with the Public Records Law is extremely important. Any missteps can result in litigation and substantial penalties. A requester may seek enforcement of the right of access to records by filing a lawsuit or by requesting the district attorney or the attorney general to bring an action. A requester who prevails in any action may generally be awarded reasonable attorneys’ fees, damages, other actual costs, and in some cases punitive damages. As a result, municipalities should take steps to insure they are properly responding to records requests and seek legal advice as necessary. 

— Richard Verstegen