By Richard Thal, WPPA General Counsel
Under the Wisconsin Public Records Law there is a presumption that the public has access to a public record. But access may be denied if the custodian of the record determines that disclosure will harm the public. This article provides you with information that you may use if you would like to receive a copy of a public document. It also addresses what your employer must do in the event that someone asks to see your personnel records. Finally, this article explains your rights if your employer notifies you that it intends to release public records that may unfairly harm your reputation.
What is a public record? The statute defines public “record” as follows:
“Record” means 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. “Record” includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. “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 which 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 which are available for sale, or which are available for inspection at a public library.
To receive a public record, you must submit your request to the legal custodian of the record. A sheriff (or chief of police), for example, may be a legal custodian of his or her records. Generally, however, a sheriff or a chief designates someone to fulfill the custodian’s duties under the Public Records Law.
A request for a public record must reasonably describe the record or information requested. A request may be made orally, but it is preferable to make the request in writing, since then the custodian must give written reasons for any denial of access. A written request is also a prerequisite to court action compelling release of a requested document. Requesters need not identify themselves or state the purpose of their requests. Furthermore, the intentions of the requester are not relevant to the determination of whether the release of a particular record complies with the provisions of the law.
A request can be denied if it is too burdensome. When a request is received, the custodian must respond “as soon as practicable and without delay.” A request may be denied when the public’s interest in not disclosing the information is greater than the public’s right to the information. For example, the public does not have the right to inspect the files of a district attorney because Wisconsin courts have determined that the public’s interest in not disclosing a district attorney’s documents outweighs the public’s right to that information.
You may have to pay a fee for any copy of a record that you receive, but the fee may not exceed the actual cost of reproduction of the record.
Law Enforcement Personnel Records
The public’s right to public records is not absolute. It is not absolute because access to public records often interferes with the following two important concerns: (1) an agency’s need to maintain confidentiality in certain matters; and (2) the need to preserve the individual’s right of privacy. If a requester asks to inspect police department personnel records, the records custodian is required to balance these two concerns with the public’s right to access. Under this balancing test Wisconsin courts have repeatedly upheld the right of police chiefs to deny public access to all documents in an officer’s personnel file. But a requester who asks to inspect particular personnel records may be entitled to receive the requested information. For example, the Milwaukee Journal/Sentinel requested copies of Milwaukee Police Department reports “filled out every time a police officer discharges his or her weapon.” In that case the court found that the public’s right to the requested information outweighed the officers’ concerns over privacy and reputation.
Because custodians apply the balancing test on a case-by-case basis, it is important that an officer with a need to protect privacy interests be heard when someone asks to inspect his or her personnel records. An officer (or his or her representative) should make sure that information not subject to disclosure is deleted from the materials that may be released. In some cases employers may want to release the requested personnel records, but the employer may also agree to black out the names, addresses and any other information identifying the officers.
An Officer’s Woznicki Right To Prevent Release Of Personnel Records
In the 1996 case of Woznicki v. Erickson, the Wisconsin Supreme Court held that the employee who is the subject matter of an open records request has certain reputational and privacy interests that are entitled to protection. Therefore, before releasing any personnel records, a records custodian must inform the subject of the request and give the employee an opportunity to file a court action to prevent disclosure of the requested information.
In 1999 Justice William Bablitch commented on an employee’s privacy and reputational interests in a case in which the court explained its reasons for expanding employees’ Woznicki rights. Justice Bablitch stated:
You are a private citizen. There is a great deal of personal information about you, your background, and your family in a document that is stored in a public office. Some of that information, if publicly released, is highly embarrassing. Some is potentially harmful to you and your family. Unknown to you, a request is made for that document. The custodian decides the document should be released under the open records law. Should you have the right to be notified and heard before the custodian releases the document? Should you have the right to have a neutral third party review the custodian’s decision? The dissent says no. The majority says yes. I agree with the majority and write only to address the dissent.
The basic principle is fairness. Is it fair to deny a person who is about to have facts about his or her life revealed to the public the right to be heard and the right to have that decision reviewed? Is it fair to give the requester of that information the right to appeal if the request is denied (as provided by Wis. Stat. § 19.35(4)(b)), but not allow the subject of that request the same right?
In Woznicki v. Erickson the Supreme Court answered that question by ruling that an officer about to have his or her personnel file released should have the right to challenge the employer’s decision to disclose the requested information. But since there is still a strong legal presumption that it is in the public interest to disclose requested documents, some requests for law enforcement officers’ personnel records will result in records custodians releasing the records. If you learn that someone has asked to inspect your personnel records, I encourage you to contact your WPPA representative for advice on how to proceed.