General Counsel
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.
Wisconsin Public Records Law (WPRL, ss. 19.31-19.39, Stats.) 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 (ss.19.32 (2) and 19.34 (1), Stats.). Each institution is required to designate a custodian of records to process record requests.
The term "records" is broadly defined to include almost all information existing in physical form 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, however, 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 (s. 19.32 (2), Stats.). In addition, WPRL does not require the custodian to create new records to respond to a request (s. 19.35 (1) (L), Stats.).
Responding to a Record Request
When responding to a request for a record, the institution's custodian of records 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 also consider whether the law either 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 (s. 19.36 (5), Stats.) (e.g., a confidential customer list).
- The record is exempted from disclosure by federal or state laws (s. 19.36 (1), Stats.) (e.g., FERPA education records).
- The record is protected from disclosure by common law limitations (s. 19.35 (1), Stats.) (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 Meeting Law (s. 19.85, Stats.) 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 nondisclosable information, the custodian may delete (redact) the nondisclosable 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. The Department of Justice suggests that a response be made within 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.
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. 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.
Form of Response
If a request is in writing, or if an oral requester asks for a written response, any denial must be in writing and must explain to the requester that the denial can be reviewed by the courts, the attorney general or a district attorney.
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 (s. 19.37 (2), Stats.). 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 custodian to pay the requester punitive damages or to forfeit not more than $1,000 (s.19.37 (3) and (4), Stats.).
Special Considerations
-
Personnel
records. The WPRL does not automatically
exempt the personnel records of state employees
from disclosure to other persons requesting
those records. Nonetheless, personnel records
are not automatically subject to release. Under
2003 amendments to the WPRL, certain employee
personnel records may not be released in response
to a public records request. These
include records containing the following
information:
- Information regarding home address, home e-mail 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;
- Information relating to an employee’s employment examination except the score; or
- 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.
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 interest in individual privacy and reputation. Custodians should consult with Campus Legal Counsel or the Office of General Counsel when such requests are received.
If the custodian determines that a requester is entitled to the release of the personnel records of another person, 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 (s. 103.13(2), Stats.). 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.
Please consult the FERPA section of the Deskbook for
specific guidance on managing student records.
-
Electronic records. Although a computer program
is not subject to inspection or copying under WPRL,
the material used as input for the computer program
and the material produced from the computer program
are subject to disclosure (s. 19.36 (4), Stats.), as
are electronic mail, floppy disks and hard drives on
personal computers. 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 to Campus
Legal Counsel.
-
Law enforcement records. Records containing the
identity of law enforcement informants may not be disclosed
unless the custodian can protect the identity of the
informants by redaction (s. 19.36 (8), Stats.). Law
enforcement records may include records maintained by
campus police. In addition, if federal law requires
the withholding of records relating to investigative
information, or makes withholding such records a condition
for receiving state aid, those records are exempt from
disclosure (s. 19.36 (2), Stats.).
-
Identity
of applicants for public positions. Applicants
for public positions have the right to have
their identities
protected from disclosure. This right does not apply
to an applicant whose name is certified for
appointment
to a position in the state classified service or
to a final candidate for a state unclassified
position
(s. 19.36 (7), Stats.).
- Retention of records that have been the subject of a request. Although WPRL generally permits an authority to destroy a requested record 90 days after the date the request is denied (s. 19.35 (5), Stats.), you should consult with the Office of General Counsel or Campus Legal Counsel before destroying a record.
Last Updated Feb. 23, 2007