Wisconsin Freedom of Information Council

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Open records FAQs

Are electronic records subject to the Open Records Law?

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Q: Are electronic records subject to the Open Records Law?

A: Yes. Electronic records are subject to the Open Records Law under section 19.32(2), Stats. Where a record originated, and where or how it is stored, does not affect the public's right of access. For example, if a public official conducts public business using her home computer, her emails and records concerning government business are still subject to the Open Records Law - even if she stores them on her home computer. See Attorney General, Wisconsin Department of Justice, Wisconsin Public Records Law: Wis. Stat. §§ 19.31-19.39 Compliance Outline 26-31 (2005).

Disclaimer: The Frequently Asked Questions and Answers on the Wisconsin FOIC website are provided by Godfrey & Kahn, S.C. (LaFollette Godfrey & Kahn is the Madison office of Godfrey & Kahn, S.C.).

The information provided on this website is a service to the general public. The information provided is not legal advice. Do not act on this information without the advice of professional legal counsel, who must evaluate the facts of your situation in light of current laws before giving you legal advice.

Your use of this web site does not create an attorney-client relationship with our firm, Godfrey & Kahn, S.C., or with any of our attorneys. Please contact us directly if you would like to retain our firm as your legal counsel, www.gklaw.com. But do not send us confidential information until you have spoken with one of our attorneys. Before we can represent you, we must determine that no conflict of interest or other situation would prevent us from representing you. Our representation begins only after we complete our evaluation and agree in writing to represent you.

 

I sent an open records request more than a week ago and I haven't received a response. What should I do?

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Q: I sent an open records request more than a week ago and I haven't received a response. What should I do?

A: It is mandatory for a custodian to respond to your open records request "as soon as practicable and without delay." Sec. 19.35(4)(a), Stats. While the law does not require a response within a specified period of time, the length of time for a response will depend on the nature and the size of the request. See Wisconsin Department of Justice, Wisconsin Public Records Law: Wis. Stat. §§ 19.31-19.39 Compliance Outline 9 (2005). For example, responses to requests for microfilm or microfiche records may take longer than requests for hard-copy documents. If you have not received a response within a reasonable time, contact the custodian to determine whether your request was received and verify when you can expect a response consistent with the statutory guidelines. The Open Records Law provides a remedy for unreasonable "delay" in granting access to a record, as well as for improper denial of access. Sec. 19.37(1), Stats.

Disclaimer: The Frequently Asked Questions and Answers on the Wisconsin FOIC website are provided by Godfrey & Kahn, S.C. (LaFollette Godfrey & Kahn is the Madison office of Godfrey & Kahn, S.C.).

The information provided on this website is a service to the general public. The information provided is not legal advice. Do not act on this information without the advice of professional legal counsel, who must evaluate the facts of your situation in light of current laws before giving you legal advice.

Your use of this web site does not create an attorney-client relationship with our firm, Godfrey & Kahn, S.C., or with any of our attorneys. Please contact us directly if you would like to retain our firm as your legal counsel, www.gklaw.com. But do not send us confidential information until you have spoken with one of our attorneys. Before we can represent you, we must determine that no conflict of interest or other situation would prevent us from representing you. Our representation begins only after we complete our evaluation and agree in writing to represent you.

 

How much can a governmental entity charge for copies of records requested under the Open Records Law?

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Q: How much can a governmental entity charge for copies of records requested under the Open Records Law?

A: Copy fees are limited to the "actual, necessary and direct cost" of reproduction unless otherwise provided by law. Sec. 19.35(3)(a), Stats. The policy of the Wisconsin Department of Justice is that photocopies should cost around 15 cents per page; any charge in excess of 25 cents per page is considered unusually high. Wisconsin Department of Justice, Wisconsin Public Records Law: Wis. Stat. §§ 19.31-19.39 Compliance Outline 32-33 (2005).

If a custodian must locate a record, requesters may not be charged for location fees unless they exceed $50, and only the actual, necessary and direct location costs are permitted. See sec. 19.35(3)(c), Stats. Mailing and shipping fees may be charged, although they are also limited to actual, necessary and direct costs. See sec. 19.35(3)(d), Stats. A custodian may require prepayment of fees totaling $5 or more, and he or she may withhold copies of requested records until payment has been received. See Sec.19.35(3)(f), Stats., and State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419, 429-30, 538 N.W.2d 608 (Ct. App. 1995).

If confidential parts of a record must be separated, or "redacted," the Wisconsin Attorney General maintains that the costs of redacting generally should be borne by the custodian. Wisconsin Department of Justice, Wisconsin Public Records Law: Wis. Stat. §§ 19.31-19.39 Compliance Outline 33 (2005); see 72 Wis. Op. Att'y Gen. 99 (1983) (OAG 28-33).

Disclaimer: The Frequently Asked Questions and Answers on the Wisconsin FOIC website are provided by Godfrey & Kahn, S.C. (LaFollette Godfrey & Kahn is the Madison office of Godfrey & Kahn, S.C.).

The information provided on this website is a service to the general public. The information provided is not legal advice. Do not act on this information without the advice of professional legal counsel, who must evaluate the facts of your situation in light of current laws before giving you legal advice.

Your use of this web site does not create an attorney-client relationship with our firm, Godfrey & Kahn, S.C., or with any of our attorneys. Please contact us directly if you would like to retain our firm as your legal counsel, www.gklaw.com. But do not send us confidential information until you have spoken with one of our attorneys. Before we can represent you, we must determine that no conflict of interest or other situation would prevent us from representing you. Our representation begins only after we complete our evaluation and agree in writing to represent you.

 

Can I make an open records request for police records, such as daily arrest records or records involving an investigation? What about a district attorney's investigative files?

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Q: Can I make an open records request for police records, such as daily arrest records or records involving an investigation? What about a district attorney's investigative files?

A: Police records are presumed public and, like all records, their release is subject to the common law balancing test. In many cases, the police department withholds records claiming their release may interfere with an ongoing investigation. See 77 Wis. Op. Att'y Gen. 42 (1988) (OAG 7-88). The Wisconsin Supreme Court, however, has held that, at a minimum, daily arrest records are open to the public. Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 428-29, 279 N.W.2d 179 (1979). The court opined that "[t]he requirement that arrest books be open to the public is to prevent any 'secret arrests,' a concept odious to a democratic society." Id. But, in State ex rel. Richards v. Foust, 165 Wis. 2d 429, 433-34, 477 N.W.2d 608 (1991) the court held that district attorney files are not subject to public access, even after the trial and all appeals have been concluded.

Disclaimer: The Frequently Asked Questions and Answers on the Wisconsin FOIC website are provided by Godfrey & Kahn, S.C. (LaFollette Godfrey & Kahn is the Madison office of Godfrey & Kahn, S.C.).

The information provided on this website is a service to the general public. The information provided is not legal advice. Do not act on this information without the advice of professional legal counsel, who must evaluate the facts of your situation in light of current laws before giving you legal advice.

Your use of this web site does not create an attorney-client relationship with our firm, Godfrey & Kahn, S.C., or with any of our attorneys. Please contact us directly if you would like to retain our firm as your legal counsel, www.gklaw.com. But do not send us confidential information until you have spoken with one of our attorneys. Before we can represent you, we must determine that no conflict of interest or other situation would prevent us from representing you. Our representation begins only after we complete our evaluation and agree in writing to represent you.

 

Is the subject of the record always entitled to notice of the open records request under section 19.356, Stats.? If the record subject is entitled to notice, then how long will it take to get the record?

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Q: Is the subject of the record always entitled to notice of the open records request under section 19.356, Stats.? If the record subject is entitled to notice, then how long will it take to get the record?

A: No, the subject of a public record is entitled to notice of a request only in certain situations, and generally these situations involve specific records pertaining to public employees. Section 19.356(2), Stats., provides that a custodian must notify the subject of a record in three circumstances: (1) when the requested record is an employee disciplinary record maintained by the authority; (2) when the record was obtained by the authority through a subpoena or search warrant; or (3) when the employee's record was prepared by an employer other than an authority. The notice procedure allows the record subject in these circumstances to initiate a court action to prevent release of the record. Sec. 19.356(4), Stats.

Section 19.356, Stats., established strict guidelines regarding the amount of time allowed to complete the notice and judicial review requirements. The custodian of the record must give the record subject written notice within 3 days after making the decision to permit access. The subject of the record must then provide written notice to the custodian of his or her intent to initiate court action within 5 days of receiving the notice. Sec. 19.356(3) Stats., The court action, furthermore, must be initiated within 10 days of the notice. Sec. 19.356(4), Stats. All of these time periods exclude weekends and holidays. The statute requires the trial court to issue a decision within 10 days of the filing of the complaint unless there is cause for an extension, and then the court shall issue a decision within 30 days. Sec. 19.356(7), Stats. On appeal, the statute requires that the court give these cases priority.

Disclaimer: The Frequently Asked Questions and Answers on the Wisconsin FOIC website are provided by Godfrey & Kahn, S.C. (LaFollette Godfrey & Kahn is the Madison office of Godfrey & Kahn, S.C.).

The information provided on this website is a service to the general public. The information provided is not legal advice. Do not act on this information without the advice of professional legal counsel, who must evaluate the facts of your situation in light of current laws before giving you legal advice.

Your use of this web site does not create an attorney-client relationship with our firm, Godfrey & Kahn, S.C., or with any of our attorneys. Please contact us directly if you would like to retain our firm as your legal counsel, www.gklaw.com. But do not send us confidential information until you have spoken with one of our attorneys. Before we can represent you, we must determine that no conflict of interest or other situation would prevent us from representing you. Our representation begins only after we complete our evaluation and agree in writing to represent you.

 
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