DENYING ACCESS TO PUBLIC RECORDS UNDER THE WISCONSIN PUBLIC RECORDS LAW
November 5, 2019
The Wisconsin Department of Justice Office of Open Government publishes its correspondence regarding the interpretation of the Wisconsin Public Records Law and the Wisconsin Open Meetings Law on a quarterly basis. A review of the most recent correspondence reveals numerous concerns about the manner in which governmental bodies deny requests for records under the Wisconsin Public Records Law. This Legal Update will review some of the basic rules governing the denial of access to public records.
Presumption of Disclosure. Wis. Stat. § 19.31 explains that “[i]n recognition of the fact that a representative government is dependent upon an informed electorate, 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. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”
Thus, if a records custodian denies a requester access to a record or to information contained in a record, i.e., redaction, there must be a legal basis for doing so.
Bases for Denial. Requests for records may be submitted verbally or in writing. A records requester is not required to submit his/her request in writing. Therefore, it is not permissible to deny a records request on the basis that the requester will not put the request in writing.
A request for records may be submitted anonymously. A records requester is not required to identify himself/herself in the context of a request for access to public records. Therefore, it is not permissible to deny a records request on the basis that the requester will not identify himself/herself.
A records requester is not required to explain what he or she intends to do with the records. Therefore, it is not permissible to deny a records request on the basis that the requester will not state the purpose of the request.
It is true that a request for records, under the Public Records Law, must be reasonably specific as to the subject matter of the records and period of time covered by the records, so as to prevent unreasonably burdening a records custodian by requiring the records custodian to spend excessive amounts of time and resources deciphering and responding to a request. However, the fact that a public records request may result in the generation of a large volume of records is not, in itself, an adequate reason to deny a request for records. Moreover, a records custodian may not deny a request solely because the records custodian believes that the request could be narrowed.
Denial Format. If a records request is submitted verbally, it is acceptable for denial to be communicated verbally. If, however, the records request is submitted in writing, a denial or partial denial of access to records also must be in writing.
Denial Content. The reasons for denying a records requester access to public records must be specific and sufficient. While the records custodian is not required to produce facts or substantial arguments supporting the reasons for denying access to public record(s), the custodian must provide a brief explanation regarding the specific reasons for the denial. For example, if the confidentiality of the requested records is guaranteed by statute, such as in the case of pupil records, citation to that statute is sufficient. In this case, it would be sufficient for the denial to explain as follows: “The records contain information that is exempt from disclosure in accordance with the confidentiality afforded to pupil records under Wis. Stat. § 118.125 and FERPA.”
According to the Wisconsin Attorney General:
- The specificity requirement provides a means of preventing records custodians from arbitrarily denying access to public records without weighing the relative harm of non-disclosure against the public interest in disclosure.
- The sufficiency requirement provides the requester with sufficient notice of the reasons for denial to enable him or her to prepare a challenge, and provides a basis for review in the event of a court action.
Denial of a written request must inform the records requester that the denial is subject to review in an action for mandamus under Wis. Stat. § 19.37(1), or by application to the local district attorney or Attorney General.
If the denial of access to public records is challenged in court, the judge will examine the reasons set forth in the written denial to determine whether they are sufficient and specific, and whether they are consistent with the law. Therefore, it is important to identify every reason for denying access to a record within the denial correspondence.
Conclusion. Upon receipt of a public records request that will result in the production of a large number of records or that seeks access to controversial records or records that the District would prefer remain confidential, it may be tempting to ignore the request or to deny it outright without providing much of an explanation. To do so is quite risky, as the Wisconsin Public Records Law provides strict rules about how to deny access to records under the law and what information needs to be contained in such denials. In order to avoid a formal complaint filed with the court or a concern filed with the Department of Justice Office of Open Government, it is advisable for governmental bodies to make sure that denials of access to public records are in compliance with the law.
For questions regarding this article, please contact the author, Attorney Shana R. Lewis (email: firstname.lastname@example.org; telephone: 844-826-0902), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.
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