Responding to Requests
Wisconsin Public Records Law (WPRL) (Wis. Stats. §§ 19.31-19.39) embodies the principle that all persons are entitled to the greatest possible information regarding government affairs and the official acts of government officers. Consistent with this principle, WPRL creates a strong legal presumption in favor of complete public access to public records.
Scope of the Law
WPRL generally requires public offices and officials, including University of Wisconsin System institutions, to permit inspection and copying of public records and to adopt and post guidelines about how the public may inspect and copy these records. Wis. Stats. §§ 19.32 (2) and 19.34 (1). Each institution designates a legal records custodian to process record requests.
The term “records” is broadly defined to include almost all information existing in a tangible medium maintained by a public institution, including UW System institutions. The definition of records includes electronic records such as email. Excluded from the definition of records are notes, drafts, preliminary computations, and similar items prepared for personal use. Also excluded are personal property having no relation to the owner’s public office; material to which access is limited by copyright, patent or bequest; and published material available for sale or at the public library. Wis. Stat. § 19.32 (2). In addition, WPRL does not require the custodian to create new records to respond to a request, nor does it require custodians to answer questions. Wis. Stat. § 19.35 (1)(L).
FORM OF REQUEST
Record requests must be reasonably specific as to the subject matter and time period involved in the request. Requests need not be written nor be identified as a “formal” request. The requester need not identify himself or herself, nor provide a reason for making the request. Fees may be charged for the actual, direct costs of copying records, and in some instances for costs associated with retrieval of the records if that amount exceeds $50.00.
RESPONDING TO A RECORD REQUEST
When responding to a request for a record, the institution’s legal records custodian should consider whether the material requested is a record, as defined in the statute, and if such a record exists. If the custodian determines that the material requested is an existing record, it should be presumed to be accessible.
The custodian should next consider whether the law specifically requires disclosure of the record, or whether an exception to disclosure applies. The following are among the common exceptions to disclosure allowed by law:
- The record is a trade secret. Wis. Stat. § 19.36 (5) (e.g., a confidential customer list).
- The record is exempted from disclosure by federal or state laws. Wis. Stat. § 19.36 (1) (e.g., FERPA-protected education records).
- The record is protected from disclosure by common law limitations. Wis. Stat. § 19.35 (e.g., the attorney-client privilege).
- The public interest in nondisclosure of the record outweighs the public interest in disclosure (“the balancing test”). In applying this balancing test, the custodian may consider the public policy exceptions to Wisconsin’s Open Meetings Law, Wis. Stat. § 19.85, and deny the request if one of those exceptions outweighs the public’s interest in disclosure. If the custodian decides that a record should be released but for the fact that it contains some non-disclosable information, the custodian must delete (redact) the non-disclosable portions of the record.
If the custodian believes that a request should be denied for these or other reasons, he or she should consult with the Office of General Counsel or Campus Legal Counsel.
Time for Responding to a Request
Responses to record requests must be given as soon as practicable and without delay. Wisconsin Executive Order #189 requires that a response be made within ten working days to a simple and straightforward request. 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.
Form of Response
Written responses are required if the request is in writing, if the oral requester asks for a response in writing, or if a request is denied. Any denial must include specific reasons for the denial citing to the statutes and must inform the requester of his or her right to seek review of the denial from the district attorney, the attorney general or the courts.
Records may be produced in electronic format unless the requester objects, and must be produced digitally at the requester’s choice if the information is held primarily in a digital format.
Penalties for Violating WPRL
A court may award damages of not less than $100 and fees, including attorney’s fees, to a requester who successfully challenges a denial of a request. Wis. Stat. § 19.37 (2). In addition, if the court finds that the institution or custodian arbitrarily or capriciously denied or delayed a response to a request or charged excessive fees, the court may require either the institution or the custodian to pay the requester punitive damages or to forfeit not more than $1,000. Wis. Stat. § 19.37 (3) and (4).
- Personnel records. The WPRL does not exempt the personnel records of state employees from disclosure to other persons requesting those records. However, certain employee personnel records may not be released including:
- Home address, home email address, home telephone number, or social security number, unless the employee has authorized access to the information;
- Information relating to the current investigation of a possible criminal offense or employment misconduct prior to disposition of the investigation;
- Employment examination (except, perhaps, the score);
- Certain information used by the employer for purposes of staff management planning, such as performance evaluations, judgments, recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings of employees.
- Identities of applicants for most university positions where individuals have requested confidentiality.
As to other employment records, the custodian must weigh the public’s interest in disclosure against the public’s interest in nondisclosure, including the public’s (as opposed to the individual’s) interest in the record subject’s privacy and reputation. Employees holding high-level positions or those with substantial public trust may be subject to different considerations, and, for example, may not be entitled to privacy in their performance evaluations. Custodians should consult with the Office of General Counsel or Campus Legal Counsel when such requests are received.
If the custodian determines that a requester is entitled to the release of the disciplinary records of an employee, the custodian must notify the person who is the subject of the records to give that person an opportunity to contest the release of the records in court.
Custodians should also be aware that employees and former employees are permitted to inspect their own medical and personnel records. Wis. Stat. §103.13 (2). Further, under WPRL, a person or that person’s authorized representative has the general right to inspect other records that contain personally identifiable information pertaining to that person.
- Student records. The federal Family Educational Rights and Privacy Act (FERPA) governs access to student records maintained by the University of Wisconsin System.
- Electronic records. Although a computer program is not subject to inspection or copying under WPRL, the data used as input for the computer program and the reports produced from the computer program are subject to disclosure, Wis. Stat. § 19.36 (4), as are email and other data stored electronically. Because of the complex issues involving inspection, preservation and redaction of electronic records, the custodian should address any questions or concerns to the Office of General Counsel or Campus Legal Counsel.
- Law enforcement records. Other than records disclosing the identity of confidential informants, campus law enforcement records are considered public records. However, serious considerations of public safety, compromise of pending investigations, or relation with other laws, should be considered under the balancing test and may weigh in favor of confidentiality. Consultation with legal counsel is highly recommended in this area.
- Retention of records that have been the subject of a request. Records subject to a pending public records request must be retained as set forth in Wis. Stat. § 19.35 (5).