Reprinted with permission from the Wisconsin Freedom of Information Council. Here’s the small print from WisFOIC:
The Frequently Asked Questions and Answers on the Wisconsin FOIC website are provided by Godfrey & Kahn, S.C. (LaFollette Godfrey & Kahn is the Madison office of Godfrey & Kahn, S.C.).
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Open records
Are electronic records subject to the Open Records Law?
I sent an open records request more than a week ago and I haven’t received a response. What should I do?
How much can a governmental entity charge for copies of records requested under the Open Records Law?
Can I make an open records request for police records, such as daily arrest records or records involving an investigation? What about a district attorney’s investigative files?
Is the subject of the record always entitled to notice of the open records request under section 19.356, Stats.? If the record subject is entitled to notice, then how long will it take to get the record?
Are public employee personnel records open to the public?
Can custodians impose a sales tax on records requests?
Are juvenile records always closed to the public?
Can I request to just view records if I do not want copies?
What do I need to include in a written open records request?
Why should I make an open records request in writing?
How does Wisconsin statute section 19.36(7) apply to the names of “final candidates” for public positions, such as school superintendent or police chief?
Open meetings law
A county board went into a closed session meeting last night, and I’m interested in finding out what it discussed. How can I do that?
Can a governmental body vote in closed session? If so, how can I get access to those votes?
Do public bodies that meet in closed session then have to vote in open session?
Can a governmental body go back into open session after convening in closed session?
What constitutes a “meeting”?
I’ve heard the terms “walking quorum” and “negative quorum.” What do they mean?
How can I get copies of documents that will be discussed at a meeting in advance of the meeting?
How much notice must be given before a meeting?
The meeting notice includes a discussion of “miscellaneous” items. Does that notice comply with the Open Meetings Law?
When is a corporation/organization a “quasi-governmental corporation” subject to the Open Meetings Law?
When can a governmental body close a meeting to discuss compensation issues?
Are electronic records subject to the Open Records Law?
Yes. Electronic records are subject to the Open Records Law under section 19.32(2), Stats. Where a record originated, and where or how it is stored, does not affect the public’s right of access. For example, if a public official conducts public business using her home computer, her emails and records concerning government business are still subject to the Open Records Law – even if she stores them on her home computer. See Attorney General, Wisconsin Department of Justice, Wisconsin Public Records Law: Wis. Stat. §§ 19.31-19.39 Compliance Outline 26-31 (2005). top
I sent an open records request more than a week ago and I haven’t received a response. What should I do?
It is mandatory for a custodian to respond to your open records request “as soon as practicable and without delay.” Sec. 19.35(4)(a), Stats. While the law does not require a response within a specified period of time, the length of time for a response will depend on the nature and the size of the request. See Wisconsin Department of Justice, Wisconsin Public Records Law: Wis. Stat. §§ 19.31-19.39 Compliance Outline 9 (2005). For example, responses to requests for microfilm or microfiche records may take longer than requests for hard-copy documents. If you have not received a response within a reasonable time, contact the custodian to determine whether your request was received and verify when you can expect a response consistent with the statutory guidelines. The Open Records Law provides a remedy for unreasonable “delay” in granting access to a record, as well as for improper denial of access. Sec. 19.37(1), Stats. top
How much can a governmental entity charge for copies of records requested under the Open Records Law?
Copy fees are limited to the “actual, necessary and direct cost” of reproduction unless otherwise provided by law. Sec. 19.35(3)(a), Stats. The policy of the Wisconsin Department of Justice is that photocopies should cost around 15 cents per page; any charge in excess of 25 cents per page is considered unusually high. Wisconsin Department of Justice, Wisconsin Public Records Law: Wis. Stat. §§ 19.31-19.39 Compliance Outline 32-33 (2005).
If a custodian must locate a record, requesters may not be charged for location fees unless they exceed $50, and only the actual, necessary and direct location costs are permitted. See sec. 19.35(3)(c), Stats. Mailing and shipping fees may be charged, although they are also limited to actual, necessary and direct costs. See sec. 19.35(3)(d), Stats. A custodian may require prepayment of fees totaling $5 or more, and he or she may withhold copies of requested records until payment has been received. See Sec.19.35(3)(f), Stats., and State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419, 429-30, 538 N.W.2d 608 (Ct. App. 1995).
If confidential parts of a record must be separated, or “redacted,” the Wisconsin Attorney General maintains that the costs of redacting generally should be borne by the custodian. Wisconsin Department of Justice, Wisconsin Public Records Law: Wis. Stat. §§ 19.31-19.39 Compliance Outline 33 (2005); see 72 Wis. Op. Att’y Gen. 99 (1983) (OAG 28-33). top
Can I make an open records request for police records, such as daily arrest records or records involving an investigation? What about a district attorney’s investigative files?
Police records are presumed public and, like all records, their release is subject to the common law balancing test. In many cases, the police department withholds records claiming their release may interfere with an ongoing investigation. See 77 Wis. Op. Att’y Gen. 42 (1988) (OAG 7-88). The Wisconsin Supreme Court, however, has held that, at a minimum, daily arrest records are open to the public. Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 428-29, 279 N.W.2d 179 (1979). The court opined that “[t]he requirement that arrest books be open to the public is to prevent any ‘secret arrests,’ a concept odious to a democratic society.” Id. But, in State ex rel. Richards v. Foust, 165 Wis. 2d 429, 433-34, 477 N.W.2d 608 (1991) the court held that district attorney files are not subject to public access, even after the trial and all appeals have been concluded. top
Is the subject of the record always entitled to notice of the open records request under section 19.356, Stats.? If the record subject is entitled to notice, then how long will it take to get the record?
No, the subject of a public record is entitled to notice of a request only in certain situations, and generally these situations involve specific records pertaining to public employees. Section 19.356(2), Stats., provides that a custodian must notify the subject of a record in three circumstances: (1) when the requested record is an employee disciplinary record maintained by the authority; (2) when the record was obtained by the authority through a subpoena or search warrant; or (3) when the employee’s record was prepared by an employer other than an authority. The notice procedure allows the record subject in these circumstances to initiate a court action to prevent release of the record. Sec. 19.356(4), Stats.
Section 19.356, Stats., established strict guidelines regarding the amount of time allowed to complete the notice and judicial review requirements. The custodian of the record must give the record subject written notice within 3 days after making the decision to permit access. The subject of the record must then provide written notice to the custodian of his or her intent to initiate court action within 5 days of receiving the notice. Sec. 19.356(3) Stats., The court action, furthermore, must be initiated within 10 days of the notice. Sec. 19.356(4), Stats. All of these time periods exclude weekends and holidays. The statute requires the trial court to issue a decision within 10 days of the filing of the complaint unless there is cause for an extension, and then the court shall issue a decision within 30 days. Sec. 19.356(7), Stats. On appeal, the statute requires that the court give these cases priority. top
Are public employee personnel records open to the public?
While the public is restricted from accessing certain types of personal information, other personnel records are presumptively open to the public. By statute, an employee’s social security number, private home address or telephone number; information relating to a pending investigation of a possible criminal offense or misconduct by the employee; information on an employee’s employment examination score; and information used by an authority for staff management and planning are not subject to public access. All other public employee personnel records are presumed open to public inspection, subject to the common law balancing test. Seesec. 19.36(10), Stats. top
Can custodians impose a sales tax on records requests?
In most cases, no. A Department of Revenue regulation, Wis. Admin. Code s.Tax 11.05(3)(q) specifically exempts from the sales tax charges for records provided under the Public Records Law. The precise wording, which can be found on the fifth page of the the document posted athttp://www.legis.state.wi.us/rsb/code/tax/tax011.pdf, p. 81, exempts from taxable receipts “charges by an ‘authority,’ as defined in s. 19.32(1), Stats., for copying a record under 19.35(1)(a), Stats., including charges for a search of records.” This would not exempt from the tax receipts for copies that do not meet the definition of record under19.32(2), such as “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.” top
Are juvenile records always closed to the public?
No. Juvenile records are open to the public when a juvenile is tried in adult criminal court and under certain circumstances when a juvenile is tried in juvenile court. It is important to note, moreover, that “for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, ‘adult’ means a person who has attained 17 years of age.” Sec. 938.02(1), Stats. top
When a juvenile is tried in adult criminal court, all court files and proceedings are open to the public (as they are in all adult criminal cases), and the criminal defendant may be identified regardless of age.
Juvenile court proceedings, however, are usually closed to the public. The public may gain access to juvenile court proceedings in two circumstances: a) When a juvenile who has previously been adjudicated delinquent (and that judgment remains of record and unreversed) is alleged to have committed a crime that would be considered a felony if committed by an adult, and b) when a juvenile is alleged to have committed a serious felony described in section 938.34(4h)(a), Stats. Access to juvenile court records is allowed only by order of the juvenile court. Sec. 938.396(2)(a), Stats.
Journalists, however, may gain access to juvenile hearings that are closed to the public, on condition that they safeguard the identity of the juvenile. See sec. 938.299(1)(a), Stats.; State ex rel. E.R. v. Flynn, 88 Wis. 2d 37, 276 N.W.2d 313 (Ct. App. 1979). Journalists also are allowed access to law enforcement records concerning juveniles on the same condition. Sec. 938.396(1), Stats. top
Can I request to just view records if I do not want copies?
Yes. Section 19.35(1)(b), Stats. allows a citizen to inspect and copy public records. Under this statute, therefore, you have the right to view or inspect public records without purchasing copies. Additionally, a requester must be provided with inspection facilities that are comparable to those used by the government body’s employees.Sec. 19.35(2), Stats. top
What do I need to include in a written open records request?
While there are no specific language requirements for an open records request, section 19.35(1)(h), Stats. provides that a request should reasonably describe the desired record or information. While the request should be broad enough to encompass all records that you seek, a request without reasonable subject matter and/or time limitations may be denied as overly broad. Excessively broad requests can also lead to substantial charges for locating and copying records. See sec. 19.35(3)(a), Stats.
Please visit the Wisconsin Freedom of Information Council website to view a template of a request letter. top
Why should I make an open records request in writing?
While oral requests for public records are valid, there are a number of reasons why submitting a request in writing is often preferable. First, if you make a written request for a record, the authority must respond to your request in writing. Sec. 19.35(4)(b), Stats. If the custodian of the record chooses not to grant your request, it must explain its reasons for the denial in its written response. Sec. 19.35(4)(b), Stats. Second, you cannot file an enforcement action challenging the custodian’s denial of your request without first having written proof of both your request and the response. Sec. 19.37, Stats. Furthermore, in enforcement proceedings, the court will consider only the reasons offered by the custodian in the written response as justification for the denial. See Osborn v. Board of Regents, 2002 WI 83, 16, 254 Wis. 2d 266, 647 N.W.2d 158; Wisconsin Department of Justice, Wisconsin Public Records Law: Wis. Stat. §§ 19.31-19.39 Compliance Outline 10-11 (2005). top
How does Wisconsin statute section 19.36(7) apply to the names of “final candidates” for public positions, such as school superintendent or police chief?
Section 19.36(7), Stats., of the Open Records Law provides access to the names of all final candidates for public positions. Whenever there are at least 5 candidates, the statute provides for public access to the names of “each of the five candidates who are considered most qualified for the office or position by an authority.” Sec. 19.36(7)(a), Stats. When there are fewer than 5 candidates, the statute provides access to “each such candidate.” Id.
What is not so clear under the statute is who constitutes a “final candidate” when there are more than five candidates being “seriously considered” for the position. The statute defines final candidate as “each applicant for a position who is seriously considered for appointment or whose name is certified for appointment and whose name is submitted for final consideration to an authority for appointment to any state position, except a position in the classified service, or to any local public office.”
Government entities have tried to restrict public access to candidate names by narrowing the pool of candidates to a number larger than five, interviewing all of those candidates, and then narrowing the candidate pool to two or three before making a final selection. The government entities then argue that only the names of the final two or three candidates need to be disclosed because that is the “pool” from which the successful candidate was selected.
The Wisconsin Attorney General in 2004 rejected that argument and concluded that the Open Records Law requires public access to the names of all of the candidates interviewed in the above example. In a July 12, 2004 letter to the The Chippewa Herald, the Attorney General explained how section Sec. 19.36(7)(a), Stats. provides public access to the entire group of candidates who were interviewed for the superintendent position in the Chippewa Falls School District. Consistent with the statutory mandate that the Open Records Law provide access to the greatest possible information, the Attorney General concluded that providing only the names of the last two candidates is too small of a group because at least five candidates were seriously considered for the position. The names of all the of the candidates interviewed was “[t]he next largest group of candidates” in the selection process and therefore, all were “final candidates” subject to public disclosure under section Sec. 19.36(7)(a), Stats. top
Open meetings law
A county board went into a closed session meeting last night, and I’m interested in finding out what it discussed. How can I do that?
You are free to call the individual board members and try to get them to talk to you. There is nothing in the state Open Meetings Law that prohibits them from speaking with you after the session is over. Sometimes, the reason for confidentiality has passed and people will share information. Other times, they cannot. You also may file an open records request for the minutes of the meeting. The fact that the meeting was held in closed session does not preclude public access to the minutes. Section 19.88(3), Stats., requires that motions and roll call votes be recorded and available for public inspection. However, motions are typically phrased to conceal the confidential information that justified closing the meeting. top
Can a governmental body vote in closed session? If so, how can I get access to those votes?
Yes, a governmental body can vote in closed session under certain circumstances. “A governmental body can vote to take action on matters discussed at a closed session if such action is an integral part of the reason for which the permitted closed session was convened.” 66 Wis. Op. Att’y Gen. 93, 97 (1977) (OAG 26-77); see State ex. rel. Cities Service Oil Co. v. Board of Appeals, 21 Wis. 2d 516, 124 N.W.2d 809 (1963); 67 Wis. Op. Att’y Gen. 117 (1978) (OAG 24-78). See section 19.85(1) for a list of the “exemptions” allowing the governmental body to close sessions and see previous question regarding access to those votes. top
Do public bodies that meet in closed session then have to vote in open session?
It’s not clear because the case law is inconclusive. The Wisconsin Supreme Court ruled that Wis. Stat. § 14.90 (1959), a predecessor to the current open meetings law, authorized a governmental body to vote in closed session on matters that were the legitimate subject of deliberation in closed session. State ex rel. Cities S. O. Co. v. Bd. of Appeals, 21 Wis. 2d 516, 538, 124 N.W.2d 809 (1963). The supreme court reasoned that “voting is an integral part of deliberating and merely formalizes the result reached in the deliberating process.”
A subsequent state appellate court case — State ex rel. Schaeve v. Van Lare, 125 Wis.2d 40, 370 N.W.2d 271 (Ct.App.1985) — made no reference to this earlier Supreme Court ruling but commented on the propriety of voting in closed session under the current open meetings law. The court indicated that a governmental body must vote in open session unless an exemption in Wis. Stat. § 19.85(1) expressly authorizes voting in closed session. The court’s statement was not essential to its holding and it is unclear whether the supreme court would adopt a similar interpretation of the current open meetings law.
Given this uncertainty, the Attorney General advises that a governmental body vote in open session, unless the vote is clearly an integral part of deliberations authorized to be conducted in closed session under Wis. Stat. § 19.85(1). Stated another way, a governmental body should vote in open session, unless doing so would compromise the need for the closed session. Accord, Epping, 218 Wis. 2d at 524 n.4 (even if deliberations were conducted in an unlawful closed session, a subsequent vote taken in open session could not be voided). None of the exemptions in Wis. Stat. § 19.85(1) authorize a governmental body to consider in closed session the ratification or final approval of a collective bargaining agreement negotiated by or for the body. Wis. Stat. § 19.85(3); 81 Op. Att’y Gen. 139. top
Can a governmental body go back into open session after convening in closed session?
Yes, as long as the notice requirements are still met. A governmental body is prohibited from reconvening in open session in the twelve hours following a closed session, unless specific public notice is given. This public notice must be given “at the same time and in the same manner” as the notice of the initial open session.Sec. 19.85(2), Stats. The practical implications of this are, in short, that a governmental body cannot at the beginning of the open session immediately vote to go into closed session only to later reconvene in open session and conduct business after all members of the public have left the meeting. The notice does not necessarily have to specify a time to reconvene in open session, but if it does, then the governmental body must wait until such time. A notice stating that the governmental body plans to reconvene in open session immediately following the closed session is acceptable notice under the open meetings law. Wisconsin Department of Justice, Wisconsin Open Meetings Law: A Compliance Guide 16 (2005). top
What constitutes a “meeting”?
If one-half or more members (that is, a quorum) are present then there is a rebuttable presumption that the members are conducting business and, thus, a meeting is taking place. Sec. 19.82(2), Stats. The presumption can be overcome, however, with evidence that the members did not discuss or act on business related to the governmental body. The statute goes on to say that the term “meeting” does not include social or chance gatherings or other particular gatherings outlined by statute. While these “social” or “chance” gatherings are not clearly defined, the issue generally is whether or not governmental business is being addressed at the gathering.
Telephone conference calls count as meetings. 69 Wis. Op. Att’y Gen. 143 (OAG 39-80) (1980). Similarly, emails may be considered a “meeting” under the Open Meetings Law. Recently, the Attorney General listed factors used to determine whether means of communication, such as email or instant messaging, resemble a meeting or a memorandum. In an October 7, 2005 letter to Mr. Orville Seymer, the Attorney General’s office identified four factors: (1) the number of participants involved; (2) the number of communications on the particular subject matter; (3) the time frame within which the communications occurred; and (4) the extent to which the email communications resemble a conversation. See also October 3, 2000 correspondence to Tom Krischan; March 12, 2004 correspondence to Dan Benson. top
I’ve heard the terms “walking quorum” and “negative quorum.” What do they mean?
A walking quorum is a series of meetings, telephone conferences, or some other means of communication such that groups of less than a quorum are effectively meeting and can arrive at a consensus or understanding regarding governmental business that, collectively, would constitute a quorum. The Open Meetings Law applies to such “walking quorums” that are used to evade the requirements of the Open Meetings Law. See State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 92, 398 N.W.2d 154 (1987).
The walking quorum rule potentially applies to email correspondence as well, particularly with the “reply all” and “forward” features. For this reason, the Attorney General discourages “the members of every governmental body from using electronic mail to communicate about issues within the body’s realm of authority.” Wisconsin Department of Justice, Wisconsin Open Meetings Law: A Compliance Guide 7 (2005).
A negative quorum is a sufficient number of members to determine a governmental body’s course of action if the group votes as a block. If enough members are present to block action by the body on an issue that requires a super-majority — over-riding a veto, for example — then there is a negative quorum. Negative quorums may trigger the open meeting law. State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 91-92, 398 N.W.2d 154 (1987). If challenged, however, the burden to prove an open meetings violation by a negative quorum, like the burden to prove a walking quorum, is on the party alleging a violation. Id. at 102. top
How can I get copies of documents that will be discussed at a meeting in advance of the meeting?
This issue is governed by the Open Records Law, not the Open Meetings Law. Generally, documents circulated to the members of the governmental body in advance of a meeting are presumed public, subject to statutory exemptions and the common law balancing test. Many governmental bodies routinely provide the news media copies of the same packet given to members, but anyone can request copies under the Open Records Law. top
How much notice must be given before a meeting?
Section 19.84(3), Stats., requires 24 hours notice “unless for good cause such notice is impossible, or impractical.” Even where there is good cause for shortened notice, notice of a meeting cannot be less than 2 hours. “Good cause” is not defined but should be “construed in favor of providing the public with the fullest and most complete information about governmental affairs as is compatible with the conduct of governmental business.” Wisconsin Department of Justice, Wisconsin Open Meetings Law: A Compliance Guide 10 (2005). top
The meeting notice includes a discussion of “miscellaneous” items. Does that notice comply with the Open Meetings Law?
The statutory standard for noticing a meeting requires that the subject matter be set forth “in such a form as is reasonably likely to apprise members of the public and the news media thereof.” Sec. 19.84(2), Stats. The Attorney General strongly discourages generic listings, such as “miscellaneous business,” and advises that if an unnoticed subject were to arise under such a listing, the governmental body should refrain from information gathering or action “depriv[ing] the public of information about the conduct of governmental business.” Wisconsin Department of Justice, Wisconsin Open Meetings Law: A Compliance Guide 9 (2005) (citing I-5-93, April 26, 1993). General subject matter listings, like “miscellaneous business,” however, should be distinguished from an agenda item designed to allow citizens to bring forth issues at a meeting. Sections 19.83(2) and 19.84(2), Stats., allow governmental bodies to hear and discuss matters raised in a general comment period, but prohibit the body from acting on those matters. The Attorney General also advises that extensive discussion of issues raised during a comment period be deferred until specific notice can be given for a future meeting. Wisconsin Department of Justice, Wisconsin Open Meetings Law: A Compliance Guide 11 (2003). top
When is a corporation/organization a “quasi-governmental corporation” subject to the Open Meetings Law?
The Open Meetings Law applies only to governmental bodies as defined by section 19.82(1), Stats., and includes governmental and quasi-governmental corporations. In addition to the statutory definition, the DOJ’s Compliance Guide includes a helpful listing of some specific “governmental bodies” as previously determined by the Attorney General, including a planning commission or zoning board of appeal, a committee appointed by the school superintendent to consider school library materials, departments of formally constituted subunits of the University of Wisconsin system or campus, and a county board of adjusters. Wisconsin Department of Justice, Wisconsin Open Meetings Law: A Compliance Guide 2 (2005).
The term “quasi-governmental” is not defined and, therefore, is determined on a case by case basis. 80 Wis. Op Att’y Gen. 129 (1991) (OAG 20-91). Currently, there is no clear-cut rule or standard for this determination. Factors taken into account (but not necessarily considered sufficient for any particular outcome) by the Attorney General in previous opinions and letters include: whether or not the corporation serves a public function; how much funding comes from public sources; the fact that the bylaws reserve directors’ positions for specified government officials; whether or not officers are appointed by a government body; and whether or not the corporation is housed in government offices and/or uses government staff and/or equipment. Wisconsin Department of Justice, Wisconsin Open Meetings Law: A Compliance Guide 3 (2003).
Corporations created directly by the legislature or other governmental bodies pursuant to statutory authorization or direction are included in “governmental” or “quasi-governmental” designations. For example, a volunteer fire department created by private citizens is not a “governmental body,” but one created by a town ordinance is. 66 Op. Att’y Gen. 113 (1977) (OAG 32-77). top
When can a governmental body close a meeting to discuss compensation issues?
The Open Meetings Law does not apply to collective bargaining negotiations. The definition of “governmental body” in section 19.82(1), Stats., excludes “any such body or committee or subunit of such body which is formed for or meeting for the purpose of collective bargaining.” Once a tentative agreement has been reached, however, section 19.85(3), Stats., requires that a governmental body conduct its discussions and deliberations regarding ratification of the collective bargaining agreement in open session. See 81 Wis. Op. Att’y Gen. 139 (1994) (OAG 7-94).
With respect to non-unionized public employees, section 19.85(1)(c), Stats., authorizes a governmental body to meet in closed session to consider, “employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility.” This exemption does not apply to discussions of compensation for elected officials, because they are not public employees over which a governmental body has jurisdiction.
The Attorney General also has noted that the purpose of the exemption is to protect the public employee whose compensation or performance is being considered, not to protect the governmental body. “Thus, in order to protect the public’s right to information about the conduct of governmental business, the personnel exemption must be narrowly construed to apply only when a governmental body is discussing the employment, promotion, compensation or performance evaluation of a specificemploye[e] or employe[e]s.” 80 Wis. Op. Att’y Gen. 176, 180-81 (1992) (OAG 5-92) (emphasis added). Applying this principle, a governmental body may close a meeting to discuss merit-based raises for specific employees, but may not close a meeting to discuss general across-the-board increases for non-unionized employees. top