WISCONSIN ATTORNEY GENERAL ISSUES OPINION ON COMMON QUESTIONS RELATED TO THE NOTICE PROVISIONS OF THE WISCONSIN PUBLIC RECORDS LAW
July 31, 2018
On February 23, 2018, the Wisconsin Attorney General issued a formal opinion related to the notice provisions under the Wisconsin Public Records Law. OAG 2-18 (Feb. 23, 2018). Specifically, the Attorney General addressed questions regarding notice requirements for former employees and former local public office holders, best practices for locating and providing notice to former employees, and whether notice is required for a record already released to the public under the Wisconsin Public Records Law. The Attorney General’s opinion provides guidance for record custodians regarding common questions that arise when determining whether notice to a record subject is required.
In our July 17, 2018 Legal Update, Attorney Colin M. Lane examined the general statutory requirements for public records requests concerning public employees and the specific exemptions that apply to certain personnel records when public employees are the subject of those records. Attorney Lane also analyzed a recent decision of the Wisconsin Court of Appeals. This Legal Update examines the extent to which statutes that regulate disclosure of records concerning employees and local public office holders apply to individuals who no longer are employed in these capacities.
The general rule is that an authority is not required to provide notice to a record subject prior to permitting a requester with access to a record that contains information related to the record subject. The term “record subject” is defined as “an individual about whom personally identifiable information is contained in a record.” Wis. Stat. § 19.32(2g). In his opinion, the Attorney General explained that “[r]ecord subjects entitled to notice must be a focus or target of the requested record in some direct way.” See also OAG 1-06 (Aug. 3, 2006).
Under Wis. Stat. § 19.356(2)(a), there are three narrow exceptions to the general rule that apply to public employees who are record subjects. When one of these exceptions applies, the authority must provide notice and an opportunity for judicial review to the public employee. The first exception, which is discussed in the Attorney General’s opinion, applies to records “containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee’s employer.” The Attorney General did not discuss the other two exceptions under Wis. Stat. § 19.356(2)(a), which relate to records obtained by an authority through a subpoena or search warrant, and records prepared by an employer other than the authority.
A fourth exception to the general rule applies to local public office holders who are record subjects. Specifically, under Wis. Stat. § 19.356(9), if the record to be disclosed relates to a local public office holder in a substantive way, the local public office holder is entitled to notice and an opportunity to submit a statement to augment the record before it is disclosed. The term “local public office” includes an elective office of a local governmental unit, an appointive office or position of a local governmental unit in which an individual serves for a specified term (except a position limited to the exercise of ministerial action or a position filled by an independent contractor), and certain department heads. In a school district, the term “local public office” holder includes, but is not limited to, school board members, superintendents, business managers, and principals.
In his opinion, the Attorney General considered whether the notice requirements under Wis. Stat. § 19.356(2)(a)1., apply if the record contains information related to a former employee. The Attorney General noted that the term “employee” is defined under Wis. Stat. § 19.32(1bg) as “any individual who is employed by an authority, other than an individual holding local public office or a state public office, or any individual who is employed by an employer other than an authority.” The Attorney General also noted that the use of the phrase “is created” in Wis. Stat. § 19.356(2)(a)1., is present tense. Therefore, he opined that a public employee who is a record subject is entitled to notice under that section if he or she was employed at the time the record was created, regardless of his or her current employment status.
Next, the Attorney General considered whether the notice requirements of Wis. Stat. § 19.356(9)(a) apply if the record contains information related to a former officer or employee holding a local or state public office. Similar to his interpretation of Wis. Stat. § 19.356(2)(a)1., the Attorney General noted that Wis. Stat. § 19.356(9)(a) references “a record subject who is an officer or employee of the authority holding a local public office or a state public office.” The Attorney General concluded, however, that under the plain language of the statute, no notice is required if the record contains information related to a former officer or employee holding a local or state public office. Because the Attorney General’s opinion lacks clarity on this issue and is merely a persuasive, not controlling opinion, school districts should consider the individual circumstances involved in a public records request for records that pertain to a former local public office holder and may wish to continue to provide notice under Wis. Stat. § 19.356(9), to former local public office holders as a matter of best practice.
The Attorney General also addressed the issue of locating a former employee for purposes of complying with the notice provisions of the Wisconsin Public Records Law, as the statute requires service of the notice by certified mail or personal service. The Attorney General explained that an authority should use reasonable diligence to locate a record subject, and offered several examples: obtaining the employee’s last known address from human resources, asking current employees, or using the internet or a telephone directory. The Attorney General noted that the statute is silent on what an authority should do in the event these methods fail, but referenced service of process rules under the Wisconsin Rules of Civil Procedure as guidance for best practices.
Specifically, if the authority is unable to provide notice by certified mail or personal service, it may use the following alternatives: (1) an authority may leave a copy of the notice at the record subject’s place of abode in the presence of a competent member of the family at least 14 years of age or in the presence of a competent adult residing in the abode; or (2) if the authority is unable to locate the record subject’s usual place of abode after reasonable diligence, the authority may leave a copy of the notice at the record subject’s usual place of business. Publication is not an acceptable method of providing notice as it may cause unreasonable delay.
Finally, the Attorney General addressed whether notice must be provided to a record subject even if the record has been introduced into evidence at a public hearing, has been published, or is otherwise publicly available. The Attorney General explained that there is no exception for records already introduced into evidence at a public hearing, published, or otherwise publicly available. If records were previously released under the Wisconsin Public Records Law, however, no additional notice to record subjects is required. The Attorney General reasoned that, with the exception of records released to an individual containing personally identifiable information pertaining to that individual pursuant to Wis. Stat. § 19.35(1)(am), records that are released to the public under the Wisconsin Public Records Law are public records. Thus, once an authority decides to release a record and complies with any notice requirements, it has permitted access and no additional notice to record subjects is required.
The Attorney General’s opinion provides guidance to records custodians on questions that frequently arise related to the notice requirements under the Wisconsin Public Records Law. Although the Attorney General is charged with interpreting the Wisconsin Public Records Law, and Attorney General Opinions often provide persuasive value, courts are not bound by them. Therefore, an authority should still consider individual circumstances when determining whether notice is required, or would be the best practice under the circumstances.
For questions regarding this article, please contact the author, Attorney Jenna E. Rousseau (email: firstname.lastname@example.org; telephone: 844.833.0828), or your Strang, Patteson, Renning, Lewis & Lacy, s.c. attorney.
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