Wisconsin’s Open Records Law
By Attorney Nick Fairweather
Cullen, Weston, Pines & Bach LLP
As a public employee, it is quite likely that you have come in contact with Wisconsin’s Open Records Law, Wis. Stat. Sec. 19.21 et seq. The Legislature has articulated a broad policy statement for the Open Records Law:
In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied. Wis. Stat. § 19.31.
Despite this broad policy, the Courts have interpreted the Open Records Law in various ways that should be of concern to public employees.
Why should I care about the Wisconsin Open Records Law?
As a police officer, you should care about the Wisconsin Open Records Law, Wis. Stat. sec. 19.21, et seq., because you are a government employee and your job, more than most government positions, produces a substantial amount of “records” that may concern you directly. Under the Wisconsin Open Records Law, any individual may request access to any record, with certain exceptions provided by the Wisconsin statutes and courts’ interpretation of the law.
What are “records” under the Wisconsin Open Records Law?
“Records” are defined by the statute broadly to include “. . . 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 or is being kept by an authority.” An authority is defined using an exhaustive list of individuals and agencies that have “custody” of a record.
What “records” are exempt from disclosure under the Wisconsin Open Records Law?
The Wisconsin Open Records Law lists several exceptions to the disclosure requirement. Under the statutory exceptions, a record should be protected from public disclosure if the record:
• Contains 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.
• Contains personally identifiable information that, if disclosed would do any of the following:
• Endanger an individual’s life or safety.
• Identify a confidential informant.
• Endanger the security, including the security of the population or staff, of any state prison, jail, secured correctional facility, secured child caring institution, secured group home, center for the developmentally disabled, or facility 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 of the type listed [above].
• Is a part of a records series 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.
The Wisconsin Supreme Court, in a well-known decision named Woznicki v. Erickson, established a procedure for public employees, including police officers, to challenge a record custodian’s decision to release a record about the employee. Before a record containing personally identifiable information can be released to a requester, the subject of the record must be notified by the custodian that such record may be released. The subject of the record may then request that the record not be released.
Since deciding Woznicki, Wisconsin’s courts have issued many decisions interpreting the Open Records Law and how it applies to public employees. These decisions have produced some uncertainty and inconsistencies regarding the coverage of the Wisconsin Open Records Law as well as the procedure for challenging decisions to release records. The key step in this procedure is ensuring that the records custodian is prevented from releasing the records until the court can determine whether they are exempt from disclosure under one of the exceptions listed above or developed by the courts.
What should I do if I am notified that a records custodian plans on releasing records that involve me?
First you should decide if the record contains information that is damaging to you or reveals personal information about you, such as telephone numbers, addresses, or other sensitive information. If you decide that you do want to challenge the decision to release these records, you should consult with an attorney because the process could be overwhelming to an officer who is unfamiliar with the law and the complicated procedure currently in place. A public employee’s challenge of the decision to release a record could involve a court proceeding and legal arguments which would be difficult for a lay person to present effectively.
Does the State Legislature plan on fixing the uncertainty produced by the Woznicki decision and the court decisions that followed it? If so, what will the Wisconsin Open Records Law look like when they are finished?
Currently, it appears as though the State Legislature intends to amend the Open Records Law. Both houses of the Legislature have introduced versions of a bill that would amend the Open Records Law. They are Senate Bill 78 and Assembly Bill 196. As of the date of this writing, both the Senate bill and the Assembly bill attempt to codify the Supreme Court’s decision in Woznicki. Some highlights of Senate Bill 78 and Assembly Bill 196 include:
• A provision requiring written notice be given to a record subject within three days of the custodian’s decision to release the record. The notice must be sent by certified mail or personally served on the subject.
• Provisions providing clear time lines for record subject challenges to a decision to release records, the custodian’s release of the records, and the reviewing court’s decision on whether to release the records.
The full text of these bills is available on the Legislature’s web site: http://www.legis.state.wi.us/nav/jnt.htm, and the analysis performed by the Special Committee on the Review of the Open Records Law is currently available at: http://www.legis.state.wi.us/lc/2002studies/OPEN/index.htm.
Should you become the subject of an Open Records request, you are encouraged to contact your WPPA business agent as early as possible. Your business agent can point you in the direction of assistance.