General Counsel
FAQ - Wisconsin Public Records Law
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
Q.
How long do I have to respond to a request?
A. Although no time limit exists for responding to a
request, you must respond to a request "as soon
as practicable and without delay" (s. 19.35 (4),
Stats.); the Department of Justice suggests ten working
days. If it is not possible to respond within that time,
it is appropriate to acknowledge the request and explain
that a response will be provided as soon as possible.
You must, however, respond to an employee's request
to inspect his or her personnel records within seven
working days after the employee makes the request (s.103.13
(2), Stats.).
Q.
Do I need to respond to an oral request or to an anonymous
request?
A. Yes, you must respond to all requests, oral or written.
Nonetheless, a request must be in writing before a requester
may commence a circuit court action (mandamus action)
to enforce the request (s. 19.37 (1), Stats.). The requester
is not required to identify himself or herself or state
the reasons for the request (s. 19.35 (1) (i), Stats.).
Also, you may require an employee who requests to inspect
his or her personnel records to make the request in
writing (s. 103.13 (2), Stats.).
Q.
How specific does a request need to be?
A. The request needs to be reasonably specific as to
the subject matter and time period involved (s. 19.35
(1) (h), Stats.).
Q.
Do I need to deny a request in writing?
A. If a request is written, your denial may be written.
If the request is oral, the denial may be oral. However,
after receiving an oral denial, the requester has five
business days to ask for a written statement of reasons
for the denial. A written statement must include the
specific reasons for denying the request and notify
the requester of his or her right to have the determination
reviewed by a circuit court in a mandamus action, by
the attorney general or a district attorney (s. 19.35
(4) (b), Stats.).
Q.
What if a person requests a video tape or audio tape
recording?
A. Unless the video tape or audio tape recording contains
a record that is exempt from disclosure, you must provide
the requester with a copy of the tape recording that
is substantially as good as the original (s. 19.35 (1)
(c) and (d), Stats).
Q.
What if the requested record is not readily comprehensible
or cannot be copied?
A. If the record is not readily comprehensible, you
must provide the requester with a written, comprehensible
copy of the information contained in the record (s.
19.35 (1) (e), Stats.). If the record cannot be copied,
you must permit the requester to photograph the record
(s. 19.35 (1) (f), Stats.).
Q.
What kind of facilities do I need to provide a person
who is authorized to copy and inspect a record?
A. You must provide the person with facilities comparable
to those used by the employees of your institution.
You must also allow the inspection and copying to take
place during your regular business hours (s. 19.35 (2),
Stats.).
Q. What kind of fees may I charge for locating or
copying records?
A. You may impose a fee for locating the record, not
exceeding the actual, necessary and direct cost of
the location process, only if the location cost is
$50 or more. You may also impose fees for reproduction,
transcription, photographing, mailing and shipping,
as long as those fees do not exceed the actual, necessary
and direct cost for those activities. Finally, you
may require prepayment by the requester if the total
amount of fees exceeds $5 Wis. Stats. § 19.35(3).
The Office of General Counsel has developed a public records request fee policy, which not only offers guidance regarding how and when to charge a fee for fulfilling a public records request, but which may also be adopted by any University of Wisconsin Institution. Review the public records request fee policy
Q.
What if a person requests a record that contains some
information that is subject to disclosure and some that
is not?
A. You must provide the information that is subject
to disclosure and delete (redact) from the copy provided
to the requester any information that is not subject
to disclosure (s. 19.36 (6), Stats.).
Q.
May a person challenge the accuracy of a record?
A. Yes, if the record contains personally identifiable
information about the requester and the requester notifies
you in writing of the challenge. If you concur with
the challenge, you must correct the information; if
you deny the challenge, you must notify the person who
has challenged the record (or his or her representative)
of the reasons for the denial and allow the person to
file a concise statement that sets forth the reasons
for the requester's disagreement with the disputed portion
of the record (19.365 (1), Stats.). If an employee disagrees
with any information contained in his or her personnel
records and you cannot agree on the information, you
must permit the employee to submit a written statement
explaining the employee's position and you must attach
this statement to the disputed portion of the personnel
record (s. 103.13 (4), Stats.).
Q.
Is my email a public record?
A. Yes. Email is often a public record. Wisconsin’s
public records law does not consider the format for
a record, but rather its substantive content. “Record
means any material…regardless of physical form
or characteristics, which has been created or is being
kept by an authority.” Wis. Stats. § 19.35(2).
Thus, a state employee’s email messages are public
records, except for those emails that fall within an
exception to the definition of public record.
Q. Is everything created or received by a state employee
a public record?
A. No. Wisconsin’s public records law expansively
defines the term record. “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.” Wis.
Stats. § 19.35(2).
However, there are exceptions to this definition. “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.” Id.
Q.
What should I do if I receive a record request in a
matter where I feel litigation is likely to occur or
where litigation has already been filed?
A. Contact Campus Legal Counsel or the Office of General
Counsel.