I.16 PUBLIC RECORDS

Aspects of the Wisconsin Open Records Law were most recently covered in a set of guidelines issued by the Office of Administrative Legal Services (http://www.wisc.edu/legal/legalservices/PubRecordsReq.pdf).  A few general points excerpted below:

Presumption of Access. Section 19.31 of the Wisconsin Statutes contains an express "presumption of complete public access, consistent with the conduct of governmental business."  Administrative Legal Services guidelines state that the law "is to 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."  

The requester.  The guidelines state that "a request may be made by any individual, except a person incarcerated in a state, county or municipal correctional facility or a person committed to a mental health facility for violation of various criminal statutes."  Requests may not be refused because the requester is unwilling to be identified or to state the purpose of the request; nor may they be refused if both of these are known.  In short, "the identity and motive of the requester is irrelevant."  

Regarding news media:  If you are made aware that the request is being made by the news media, as a matter of institutional policy, please notify the Office of News and Public Affairs.

The request may be oral or written.  The requester does not need to use particular language and may not be required to use a specific form.  Requests must "reasonably" describe the record or information requested; subject matter and time frame covered by the request should also be reasonably limited.  "If you have any questions about what the requester is actually looking for or if you think that the request is unreasonable in scope, you should immediately contact the requester to attempt to resolve the ambiguity."  Since requests must be responded to "as soon as practicable and without delay" (see below), questions about requests should be raised early in the process.  

Administrative Legal Services' guidelines suggest that four key questions be considered when requests are received:

1. Does the request seek a "record" that exists and is being kept by the University or any of its departments or units?
2. Does the request seek material that is not a "record?"
3. Is there any statutory basis for denying the request? (If so, please consult with Administrative Legal Services prior to denying any request.)
4. Is there any other basis for denying the request? (Again, please consult with Administrative Legal Services before doing so.)

Please refer to the guidelines for a discussion of documents that qualify as "records" and situations that may warrant denial of requests. 

Records That May Not Be Released.  If you believe there may be a valid reason to deny access, confer with John Dowling (263-7400), the University's official records custodian before denying access. Some University records may be treated as confidential under the open records law and the exceptions to the Wisconsin open meetings law. The law's general intent, however, is that state records be open to the maximum extent possible. Moreover, because the law contains some explicit requirements regarding the denial of access, it is important that the denial not only be permissible but be properly communicated to the requester.

Time for Compliance. The request must be filled, or the requester notified of the denial of the request, as soon as practicable and without delay. What this means will vary with the nature and extent of the request; however, in Administrative Legal Services recommends that all requests be responded to within ten days of receipt.  If production of the records within that time is not possible, contact the requester and provide a reasonable estimate of the time needed.

Departments may charge for copying and locating records.  A requester is entitled to a copy of a record, (including audio and video tape records).  You may charge a fee for the "actual, necessary and direct cost of reproduction" if a copy is requested.  (For documents, the normal charge is fifteen cents per page.)  No additional charge may be levied for labor involved in copying or redacting the records.  If the request is for copying a few pages, you need not charge a fee. If a request requires an extensive search, and the actual cost to locate the records is $50.00 or more, a "locating fee" may be charged.  If necessary, the fee may also include the "actual, necessary and direct" cost of mailing or shipping the records.  If charges are to be made, you should notify the requester in advance.  If the amount exceeds $5.00, you may require pre-payment. 

Please note that a department need not create records in order to respond to an information request.  Assuming that such records do exist, the following examples may assist you in responding to records requests:

Go to the Notice to be posted in each Department

For more information about Legal Requirements for Public Records, see the UW Libraries Archives and Records Management Manual at www.library.wisc.edu/libraries/Archives/rm/manual/ManualLegal_ch6_.html.