PUBLIC RECORDS FOR LAW ENFORCEMENT

Module One
Overview of the Public Records Law:
Purpose, Key Definitions, and Analysis
Assistant Attorney General Mary Burke
Assistant Attorney General David Perlman
December 9, 2009
I.

What is the Wisconsin Public Records Law?

A. The Public Records Law provides a procedure to obtain access to existing records
of state and local government entities.
1.

Other laws may provide other procedures to obtain the same records; for
example, the discovery statutes applicable in civil or criminal cases. Each
procedure is governed by its own set of rules.

2.

The Public Records Law does not require providing narrative answers to
questions, unlike litigation interrogatories.

3.

In order to provide a response, the Public Records Law generally does not
require creating records that do not already exist at the time a public records
response is submitted.

4.

An authority may choose to do more than the Public Records Law requires, if
it so chooses.

B. The Public Records Law was enacted by the Wisconsin Legislature and is
codified at Wis. Stat. 19.31 19.39.
1. Most provisions of the current public records statutes were enacted in 1982.
2. Other legal sources provide guidance about application of the Public Records
Law to particular circumstances.
a. Court decisions.
b. Attorney general opinions.
c. Letters written by assistant attorneys general.
d. Department of Justice Public Records Compliance Outline, available free
of charge at www.doj.state.wi.us.

e. Informational materials posted on WILENET.

C. The Public Records Law applies to records created or maintained by Wisconsin
state or local authorities.
1. A similar federal law, the Freedom of Information Act or FOIA, governs
access to records held by federal officials and agencies.
2. The Public Records Law also is known as the Open Records Law or the
Sunshine Law.
II.

What is the Purpose of the Public Records Law?

A. The purpose of the Public Records Law is to shed light on the workings of
government and the acts of public officers and employees. It provides
opportunity for public oversight of government.
B. The Public Records Law declares that it is 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.
C. Providing citizens with information on the affairs of government is:
[A]n 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.
Wis. Stat. 19.31.
D. The presumption favoring access is strong, but not absolute.
1. The general rule is that [e]xcept as otherwise provided by law, any requester
has a right to inspect any record. Wis. Stat. 19.35(1)(a).
2. Any record specifically exempted from disclosure under state or federal law
or authorized to be exempted from disclosure by state law is not subject to
disclosure under the Public Records Law.

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3. The Public Records Law balances access to records with execution of an

authoritys other official responsibilities.
4. The Public Records Law attempts to fairly allocate the costs of responding to
public records requests.
5. The Public Records Law is particularly deferential to the public interests in:
a. Protecting public safety;
b. Protecting the safety of individual persons;
c. Effective law enforcement; and
d. Effective criminal prosecution.
III. Key Definitions
A. Record
1. Any material on which written, drawn, printed, spoken, visual or
electromagnetic information is recorded or preserved, regardless of physical
form or characteristics, which has been created or is being kept by an
authority. Wis. Stat. 19.32(2). Includes, among other things:
a. Handwritten, typed, or printed documents;
b. Maps and charts;
c. Photographs, video recordings, and audio recordings;
d. Computerized information, CDs, and optical discs; and
e. Electronic records and communications.
2. More than one authority may have copies of the same record.
3. Not everything a public official or employee creates is a record.
a. Must be created or kept in connection with the official purpose or function
of the agency.

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b. Excludes notes, drafts, preliminary documents, and similar materials

prepared for the originators personal use or in the name of a person for
whom the originator is working. For example, the following are not
records for purposes of the Public Records Law:
1) Officers memo book, so long as kept only for the officers personal
use;
2) Draft of a report prepared by a typist before the dictating officer
reviews and finalizes; or
3) Draft of a letter prepared by a subordinate for the chief or sheriff to
sign.
c. Simply stamping draft on a document isnt enough to make it a draft for
purposes of the public records law. What matters is how the document is
used and circulated.
d. Whether personal e-mail sent on an authoritys e-mail system constitutes a
record potentially subject to disclosure currently is pending before the
Wisconsin Supreme Court in Schill v. Wisconsin Rapids Sch. Dist., Case
No. 2008-AP-967-AC. A decision is expected before mid-July 2010. For
example, Im running late this afternoon can you pick up the kids or
How about lunch at Schiros at 11:30 Wednesday?
4. Other things that are not records:
a. Published material available for sale or at a library;
b. Purely personal property with no relation to the office; and
c. Material to which access is limited by copyright, patent, or bequest.
5. Personal e-mail accounts and cell phone records.
a. If official business is conducted on a personal e-mail account or cell
phone, related portions of the e-mail or cell phone records may be subject
to disclosure in response to a public records requestbut not portions of
the records that are not related to official business.
b. When contained in records maintained, prepared or provided by an
employer, an employees home address, home e-mail address, home
telephone number and social security number may not be disclosed in
response to a public records request unless the employee authorizes
disclosure. Wis. Stat. 19.36(10)(a).

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1) The same underlying public policy of protecting the privacy and

security of public employees may be considered in determining
whether an officers personal cell phone records or e-mail address
must be released.
2) Public safety and effective law enforcement considerations also may
be considered in determining whether an officers personal cell phone
records or e-mail address must be released.

IS THIS A RECORD?
1. License number jotted on back of officers hand with pen.
2. Contents of departments computer database of law enforcement contacts.
3. Investigative report reviewed by officer from dictation but not yet signed off by
the officers supervisor.
4. Draft of departments annual budget prepared by financial officer but not yet
reviewed by police chief.

B. Requester
1. Any person who requests to inspect or copy a record.
2. Exception: Committed and incarcerated persons are requesters only to the
extent that they request inspection or copies of records that contain specific
references to that person or his or her minor children for whom the person has
not been denied physical placement under Wis. Stat. ch. 767.
a. A committed person is an inpatient committed:
1) Under the mental health law (Chapter 51),
2) Under the old sex crimes law (Chapter 975),
3) Under the sex predator law (Chapter 980), or
4) Because found not guilty by reason of disease or defect (Chapter 971).
b. An incarcerated person is a person incarcerated:

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1) In a state prison, county jail, or county house of correction;

2) In another state, county, or municipal correctional detention facility; or
3) Because confined as a condition of probation.
3. Exception: A requester who is an individual or person authorized by the
individual has a greater right to inspect records containing personally
identifiable information about that individual. Wis. Stat. 19.35(1)(am).
a. Perform the usual public records analysis first, then consider whether
19.35(1)(am) requires additional disclosures.
b. There are significant exceptions to enhanced access under 19.35(1)(am),
including:
1) Records maintained or collected in connection with a complaint,
investigation or other circumstances that may lead to an enforcement
action, administrative proceeding, or court proceeding, or any record
collected or maintained in connection with such an action or
proceeding;
2) Records that would endanger an individuals life or safety;
3) Records that would identify a confidential informant; and
4) Records that would endanger the security of a prison, jail or specified
other facilities.
C. Authority
1. Defined by statute, including:
a. State or local office;
b. Elected official;
c. Agency, board, commission, committee, council, or department;
d. Court of law;
e. Formally constituted sub-unit of the foregoing; and
f. Others identified in Wis. Stat. 19.32(1).
2. Every authority has independent obligations under the Public Records Law.

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3. The police department or sheriffs department is a separate authority from the

district attorneys office.
D. Legal Custodian
1. Vested by the authority with full legal power to render decisions and carry out
the authoritys statutory public records responsibilities.
2. An agency may designate one or more positions to serve as the legal
custodian.
3. If an agency does not designate a legal custodian, the statutory defaults are the
highest ranking officer and the chief administrative officer (if there is such a
person).
IV. Procedures for Agencies
A. The Public Records Law requires each authority to adopt, display, and make
available for inspection and copying information about its public records policies.
B. The authoritys policies must include, per Wis. Stat. 19.34(1):
1. A description of the organization;
2. The times and places at which the public may obtain information and access
to records, or make requests for records;
3. The costs for obtaining records;
4. The identity of the legal custodian;
5. The methods for accessing or obtaining copies of records;
6. Each position that constitutes a local public office or state public office; and
7. For authorities that do not have regular office hours, any notice requirement of
intent to inspect or copy records.
C. Records retention is a subject related to, but separate from, the Public Records
Law.
1. Records retention requirements applicable to local authorities are contained in
Wis. Stat. 16.61, and related local ordinances.

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2. Records retention requirements applicable to state authorities are contained in

Wis. Stat. 19.21.
3. Alleged failure to keep requested records cannot be attacked under the public
records law.
4. Note: Under the Public Records Law, an authority may not destroy a record
after receiving a request for that record until at least 60 days after denial of the
request or until related litigation is completed. Wis. Stat. 19.35(5).
V.

The Request
A. Format.
1. May be written or oral.
2. No specific language or format is required by the Public Records Law.
3. An authority may ask a requester to fill out a form or put a request in writing,
but may not require the requester to do so.
4. No magic words are required. A public records request does not have to be
identified as a public records request or refer to Section 19.31-19.37.
a. Treat a request for information as a public records request if, under the
totality of circumstances, the requester appears to be trying to make a
public records request.
b. It is sufficient if a requester states that he or she is making a Freedom of
Information Request, even though that really is the name of the
counterpart federal law.
B. Specificity.
1. A request must be sufficiently specific as to time frame and subject matter.
2. The purpose of this requirement is to prevent unreasonably burdening a
records custodian by requiring expenditure of excessive amounts of time and
resources deciphering and responding to a request.
3. A custodian is not required to guess at what records a requester is seeking.
4. The fact that a request may result in generation of a large number of records is
not in itself a sufficient reason to deny a requestBUT, at some point, an
overly broad request becomes sufficiently excessive to warrant rejection.

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a. There is no bright line test for what constitutes an overly broad request.
b. Example: A request for tapes and transcripts of three hours of 911 calls on
60 channels was not reasonably specific.
c. Example: A request was too burdensome when it would have required
production of voluminous records relating to virtually all county zoning
matters over a two-year period, without regard to the parties involved or
whether the matters implicated the requesters interests in any way.
5. The fact that a requester could have submitted a narrower request is not a
sufficient reason to deny a public records request.
C. Requesters identification.
1. The requester generally does not have to identify himself or herself.
2. Exception: Access to certain types of records, such as patient health care
records or student records, is limited to certain persons by applicable
substantive law.
a. Law enforcement may have obtained these records pursuant to an
exception in the governing substantive law, which does not permit
redisclosure except to other persons qualifying under an exception in the
governing substantive law. In these circumstances, it is OK to confirm
that the requester is entitled to obtain the records under governing
substantive law.
b. A requester may be required to show acceptable identification whenever
security reasons or federal law/regulations so require. Wis. Stat.
19.35(1)(i).
D. Purpose, motive, and intended use.
1. The requester does not have to state or explain the purpose of the request.
2. The requesters motive for requesting the records and intended use of the
records generally are not relevant to the custodians release decision.

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IS THIS AN ADEQUATE REQUEST?

1. Pursuant to the public records law, I request copies of Dave Perlmans personal
cell phone records for October and November, 2009.
2. This is a FOIA request for the October 19, 2009, recordings of all video cameras
installed at the Walmart in Sun Prairie, Wisconsin.
3. I request copies of all communications between the Department of Justice and
any law enforcement agency in 2008.
4. Provide a list of all officers disciplined for any reason whatsoever.
5. I request copies of all records held by your department that mention me for any
reason.

VI. The Response

A. The Public Records Law requires responding to a public records request, whether
written or oral.
1. If the request is written, a written response is required if the request is denied
in whole or in part.
2. If the request is oral, an oral response is sufficient.
a. If the requester demands a written statement of the reasons for denying the
response within five business days of receiving an oral denial, the
authority must provide a written response.
b. Even if a written response is not required, an authority may want to
respond in writing to memorialize communications and create a paper
trail.
B. A response must be provided as soon as practicable and without delay. Wis.
Stat. 19.35(4)(a).
1. Immediate response is not required.
2. No specific time frame is required, such as ten days or 48 hours.

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3. What constitutes a reasonable response time depends on the nature of the

request, the staff and other resources available to process the request, the
extent of the request, and other relevant considerations. Whether an authority
responds with reasonable diligence depends on the totality of circumstances.
4. DOJs policy is that ten working days generally is a reasonable time for
responding to a simple request for a limited number of easily identifiable
records.
5. Responses should be given high priority. Arbitrary and capricious delay or
denial of records exposes the authority to punitive damages and a $1,000.00
forfeiture.
6. Compliance at some unspecified future time is not sufficient.
C. The reasons stated for denying a public records request in whole or in part must
be specific and sufficient.
1. The purpose of the specificity requirement is to give adequate notice of the
basis for denial and ensure that the records custodian has exercised judgment.
2. The purpose of the sufficiency requirement is to provide the requester with
enough information to challenge the denial, if desired, and provide the basis
for judicial review.
3. A full-blown legal brief is not required if a public records request is denied in
whole or in part, but simply stating a general conclusion is not sufficient.
4. If confidentiality of a requested record is guaranteed by statute, citation to that
statute is sufficient.
5. If access to a requested record is denied, the need to restrict access still must
exist when the request is received.
6. If denial of a public records request is challenged in a subsequent court
proceeding, the court generally may consider only the reasons stated in the
denial itself.
a. All reasons for denying access to some or all records requested should be
stated in the denial.
b. Limited exception: A court may consider a specific statutory exception
not stated in a denial.
D. If only part of a responsive record is disclosable, that part must be disclosed.

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E. Denial of a written request must inform the 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. Wis. Stat. 19.35(4)(b).
F. An authority does not have to extract information from existing records and
compile it in a new format. The authority may choose to do so, but may wish to
first confirm the requesters willingness to pay related costs.
G. Suggested framework for responding to a public records request:
1. Does a responsive record exist?
2. Is there an absolute right of access to that record?
3. Is there a prohibition on access to that record?
4. Apply the balancing test: Based on the specific circumstances presented,
weigh the public interest in favor of disclosure against any identifiable public
policies that do not favor disclosure.

IS THIS AN ADEQUATE RESPONSE?

1. The record you requested is not available at this time.
2. No such record exists.
3. Due to staff and budget shortages, we no longer are able to respond to public
records requests.
4. We will respond to your request as time allows, estimated to be a minimum of six
months.

***
Need more information? Consult the DOJ Public Records Outline posted at
www.doj.state.wi.us, or contact Connie Anderson at (608) 266-3952 for referral to a DOJ
public records attorney.

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