Claire Dalle Molle Office of Legal Affairs

Public Records Overview

"Authority" means any of the following having custody of a record: a state or local office…department or public body corporate and politic created by the constitution or by any law, ordinance, rule or order

"Record" means any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority.

Definitions

"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 personal property; or materials to which access is limited by copyright, patent or bequest

Definitions

"Requester" means any person who requests inspection or copies of a record

“Personally identifiable information” is information that can be associated with a particular individual through one or more identifiers or other information or circumstances

Definitions

Public records law◦ Wis. Stat. §§ 19.31-19.39

Case Law

Other law depending on circumstances

Applicable Law

General Rule: any requester has a right to inspect any record◦ In addition to the general rule, a requester has a

right to inspect any personally identifiable information pertaining to the individual in a record

Form of request?◦ Request may be oral or in writing◦ Request must be reasonably specific

Public Records, 19.31-19.39

What type of record?◦ Any employee has the same right as any other

person to receive records under the public record law

Can employee’s rep get the records?◦ The individual may authorize any person to get

the record◦ Does not need to be for a grievance or other

proceeding

Public Records, 19.31-19.39

What can employee get?◦ Not just own personnel records, any records

otherwise releasable◦ Employee has enhanced right to own record◦ The purpose of giving an individual greater access

to records under Wis. Stat.§ 19.35(1)(am) is so that the individual can determine what information is being maintained, and whether that information is accurate. Hempel v. City of Baraboo, 2005 WI 120

◦ May also need to consider the right to inspect under Wis. Stat. 103.13

Public Records, 19.31-19.39

How often must employer fulfill the request?◦ As often as requests are made- there is no limit◦ But, there are bases for denial. Employer must

respond to the request by either fulfilling or denying Timeline for responding to request?

◦ As soon as is practicable and without delay◦ “what constitutes a reasonable time for a response

to any specific request depends on the nature of the request, the staff and other resources available to process the request, the extent of the request and other related circumstances.” WIREdata, Inc. v. Village of Sussex

Public Records, 19.31-19.39

Can employer deny request?◦ Only if there is a statutory exception◦ Still no traditional balancing test

How do you determine if employee can have the record?◦ Look for general right of access◦ Look for specific right of access◦ Look to exceptions (collected or maintained in

connection with a circumstance that may lead to an enforcement action, administrative proceeding, arbitration proceeding or court proceeding)

Public Records, 19.31-19.39

Duty to Notify Persons Named in Records◦ Notice must be provided to “any record subject to

whom the record pertains.” Wis. Stat. § 19.356(2)(a)

◦ When the record contains information relating to an employee created or kept by an authority as a result of an investigation into a disciplinary matter or law violation

◦ For notification requirement to kick in, the record subject must a focus or target of the requested record.

Public Records, 19.31-19.39

Can an employer charge for the requested records?◦ Yes, but only the actual, necessary, and direct

cost of producing the records

What is the penalty for failing to comply?◦ Attorneys’ fees, damages of not less than

$100.00, and other actual costs shall be awarded to a prevailing requester

◦ Sometimes punitive damages or civil forfeiture

Public Records, 19.31-19.39