Legal Updates


PERSONAL NOTES MAY BE “RECORDS” UNDER THE PUBLIC RECORDS LAW

January 2, 2018

A recent decision issued by the Wisconsin Court of Appeals in October 2017, warns that some “personal notes” prepared by school district employees and officials are included in the definition of “records” under the Wisconsin Public Records Law, Wis. Stats. §§ 19.31-19.39.

Wisconsin’s Public Records Law provides that the following items are NOT records: drafts, notes, preliminary documents, and similar materials prepared for the originator’s personal use or by the originator in the name of a person for whom the originator is working. Wis. Stat. § 19.32(2). In a recent case, the Wisconsin Court of Appeals explored what constitutes “notes…for the originator’s personal use” for purposes of the Wisconsin Public Records Law.

In Animal Legal Defense Fund v. Board of Regents of the University of Wisconsin, the Animal Legal Defense Fund filed suit against the University of Wisconsin’s Research Animal Resource Center (Center) when the Center refused to produce certain notes in response to a public records request. At issue, were ten (10) documents created by two (2) different individuals (Holly McEntee and Christine Finney), while in attendance at Animal Care and Use Committee meetings. The Center denied access to the notes prepared by Ms. McEntee and Ms. Finney asserting that the notes were not “records” as defined by the Public Records Law, but rather, notes prepared for the originators’ personal use; therefore, they were not subject to disclosure under the Public Records Law.

In support of its refusal to disclose the notes, the Center explained as follows:

The official record of [Animal Care and Use] [C]ommittee deliberations is the final version of the minutes of a meeting…To the extent that any notes are taken at meetings by individual committee members and that any such notes exist, they are not used by the [Animal Care and Use Committee] for any official purpose, and would fall within the [Wis. Stat. § 19.32(2)] exclusion to Wisconsin’s definition of “record.”…The [Animal Care and Use Committee] staff charged with taking meeting minutes may take notes at meetings to refresh their memories as they prepare the minutes; however, to the extent that any such notes exist, they are also not “records” under Wisconsin law.

The Court of Appeals agreed with the Center that the records in question are, in fact, notes, which it defined as “a broad range of frequently created, informal writings.” See also, Voice of Wisconsin Rapids LLC v. Wisconsin Rapids Public Sch. Dist., 2015 WI App 53 (copies of post-it notes, telephone message slips and other hurried, fragmentary, informal writings and draft letters are suitably classified as “notes”).

However, the Court of Appeals disagreed with the Center that the notes were prepared for the originator’s personal use. The Court relied upon its decision in Voice of Wisconsin Rapids LLC, supra:

[E]xclusion of material prepared for the originator’s personal use is to be construed narrowly. Most typically this exclusion may be invoked properly where a person takes notes for the sole purpose of refreshing his or her recollection at a later time. If the person confers with others for the purpose of verifying the correctness of the notes, but the sole purpose for such verification and retention continues to be to refresh one’s recollection at a later time, … the notes continue to fall within this exclusion. However, if one’s notes are distributed to others for the purpose of communicating information or if notes are retained for the purpose of memorializing agency activity, the notes would go beyond mere personal use and would therefore not be excluded from the definition of “record.”

The Court of Appeals identified the difference between distributing notes to others for the purpose of communicating information and distributing notes for the purpose of storage and maintenance. If the distribution occurred for the former purpose, the notes would not be for the originator’s personal use.

The Court also identified the difference between retaining notes for the purpose of memorializing an agency activity and establishing a formal position or action against retaining notes for the sole purpose of refreshing the originator’s recollection at a later date. The Court concluded that “whenever notes are used to establish a formal position or action of an authority, such use goes beyond any personal uses of the originator.”

With regard to the notes at issue in the Animal Legal Defense Fund case, Ms. McEntee prepared notes during the Committee meeting in order to refresh her recollection when she assisted Ms. Finney with her responsibility of drafting the Committee meeting minutes. Ms. Finney explained that she would review and use Ms. McEntee’s notes to prepare the final minutes for the Committee meetings. The Court concluded that Ms. McEntee’s notes were not created solely to refresh her recollection, but rather, they were distributed to others for the purpose of communicating others. Therefore, the Court concluded that Ms. McEntee’s notes were, indeed, “records” under the Public Records Law.

Also, Ms. Finney prepared notes during the Committee meeting to record who was present and what was said at the meeting. She then took those notes, along with the notes prepared by Ms. McEntee to create the draft of the final, official minutes of the meeting. The Court concluded that it is unreasonable to conclude that Ms. Finney’s notetaking was voluntary, at her own initiative or for her own convenience. Instead, Ms. Finney was obligated to take notes at the meeting as part of her job responsibilities. Therefore, the Court concluded that her notes were intended to memorialize agency activity and not for her own personal use. As a result, her notes, too, were “records” under the Public Records Law.

This case serves as a warning to school district officials and employees, who take notes during meetings, interviews, telephone calls, and other activities related to and arising out of their positions in the school district. Even if the official or employee intends for the notes to be maintained on a confidential basis as “personal notes,” the notes may indeed satisfy the definition of “records” under the Public Records Law if they are not retained solely for the originator’s personal use. As a result, the school district will not be able to refuse to disclose such notes in response to a public records request on the basis that the notes are not “records” under the Public Records Law.

However, if the notes are “records” for purposes of the Public Records Law, the analysis is not over. Depending upon the subject matter covered by the notes or the circumstances involved in the preparation of the notes, the school district may not be required to disclose the notes in response to a public records request if the notes satisfy another exemption under the law. Additionally, the school district may still refuse to disclose the notes pursuant to the Public Records Law’s balancing test, if the strong public interest in disclosure of the notes against the public interest favoring nondisclosure. As such, in order to preserve the school district’s right to argue both reasons for refusing access, any written denial of access to “personal notes” should reference the definition of “records” under the Public Records Law, as well as the public policy basis(es) for withholding the “personal notes” under the balancing test.

For questions regarding this article, please contact the author, Attorney Shana R. Lewis (email: slewis@strangpatteson.com; telephone: 844.626.0902), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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