Legal Updates


WISCONSIN COURT OF APPEALS ADDRESSES REQUESTS FOR ELECTRONIC RECORDS

June 18, 2019

Public entities often find themselves subject to public records requests.  Given technological advances, particularly electronic-mail, public entities are now responding to requests that seek a high volume of documents in a variety of formats.  Responding to these requests in a timely and appropriate manner will ensure that public entities are complying with Wisconsin’s Public Records Law.  A recent Wisconsin Court of Appeals decision, Lueders v. Krug, No. 2018AP431, (Wis. Ct. App. June 5, 2019), highlights the importance of providing records in the form they are requested.

As a refresher, Wisconsin’s Public Records Law is codified in Wis. Stats. §§ 19.31 to 19.39.  Pursuant to the Public Records Law, a member of the public may request access to public records.  Importantly, requests do not have to be in writing and requesters generally do not have to provide their identities when making a request.  Wis. Stat. § 19.35(1).

After a public entity receives a request, the entity must keep in mind that the Public Records Law provides:  “it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”  Wis. Stat. § 19.31.  This strong presumption favoring disclosure generally means that most records will be subject to disclosure.  However, the law does provide specific exemptions for particular records, such as certain personnel records, pupil records, and patient health records, among other numerous exemptions.  Furthermore, even if a record is not subject to a specific exemption, the record may be withheld or redacted if the strong public interest in disclosure is outweighed by the public interest favoring nondisclosure.

Once a public entity has determined that a given record is subject to disclosure, the entity must respond to the request “as soon as practicable and without delay” by providing the requester with the requested documents and notifying the requester of any records withheld or redacted, along with the accompanying reason(s) for such withholdings and redactions.

The Wisconsin Court of Appeals recently addressed a case involving a dispute over the format the records must be provided to the requester.  In Lueders v. Krug, Bill Lueders emailed Scott Krug, a state representative, requesting “any and all citizen correspondence . . . sent and/or received by Representative Krug or his/her staff” between certain dates and on specific topics.  Krug’s office printed out copies of responsive emails and made arrangements for Lueders to inspect and/or purchase copies of these printouts.  Lueders visited Krug’s office and inspected the printouts.  Lueders subsequently sent an email to Krug’s office and clarified that he was requesting “to receive the records in electronic form. . . This request is not for printed copies of these records; it is for the records in electronic form, as an email folder, or on a flash drive or CD.”  Krug denied this request arguing the printouts were sufficient.  Lueders then filed a mandamus action directing Krug to provide him with an “electronic, native copy of the requested records.”

Krug’s argument hinged on the interpretation of Wis. Stat. § 19.35(1)(b):

Except as otherwise provided by law, any requester has a right to inspect a record and to make or receive a copy of a record.  If a requester appears personally to request a copy of a record that permits copying, the authority having custody of the record may, at its option, permit the requester to copy the record or provide the requester with a copy substantially as readable as the original.

Because Lueders initially appeared in person to inspect the records and the printouts made available to Lueders were copies “substantially as readable as the originals,” Krug argued that the printouts were sufficient.  However, the Court of Appeals disagreed.  The Court of Appeals specifically noted that, Wis. Stat. § 19.35(1)(b) applies when a “requester appears personally to request a copy of a record.”  While Lueders initially appeared in person to view the records, he did not appear in person thereafter to request the records; his requests were all submitted via email.  Therefore, the Court of Appeals concluded that Wis. Stat. § 19.35(1)(b) did not apply and the printouts were not a sufficient response to Lueders’ request.

In reaching its decision, the Court of Appeals also emphasized the importance of metadata contained within emails.  Metadata “show[s] when documents were created and who created them.”  The Court of Appeals noted that this information can be obtained via the original electronic copies of the records but the printouts lack this information.  The metadata provided further support for the Court of Appeals concluding that Lueders was entitled to the original electronic copies of the emails.

Lueders v. Krug highlights the importance of responding to a public records request with records in the format the requester specifically requests.  It further emphasizes the ever-increasing complexity of public records in the age of technology.

For questions regarding this article, please contact the author, Attorney Colin M. Lane (email: clane@strangpatteson.com; telephone: 844-626-0909 toll free), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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