This past week, Wisconsin Attorney General Brad Schimel - in celebration of National Sunshine Week - took to Facebook to answer the most frequently asked questions on open government sent to the Wisconsin Department of Justice Office of Open Government.
Q: What can I do if an authority denies my public records request, and I disagree with the authority’s decision?
A: The Wisconsin Public Records Law provides several courses of action for a requester dissatisfied with an authority’s response, or lack of response, to a public records request. An action for mandamus which asks a court to order the release of requested records is available if an authority denies an entire request or part of a request or delays granting access to a requested record. An authority’s offer to comply with a request that is conditioned on unauthorized costs and terms constitutes a denial.
A requester has three ways to pursue a mandamus action.
- A requester may file an action for mandamus by himself or herself, with or without the assistance of an attorney.
- A requester may submit a written request asking the district attorney of the county where the record is found to pursue enforcement.
- A requester may submit a written request to the Attorney General to file an action for mandamus.
The law does not require a district attorney to commence an enforcement action upon receipt of a written request to do so. A district attorney has broad discretion to decide whether to pursue a mandamus action. Likewise, the Attorney General has broad discretion to decide whether to pursue enforcement. While compliance with the law in general is important, the Attorney General generally exercises his authority to pursue enforcement only in cases presenting novel issues of law that coincide with matters of statewide concern. The public records law takes into account the fact that district attorneys or the Attorney General may not always bring actions for mandamus upon request and provides individuals with the option of commencing their own action.
The enforcement provisions of the public records law may be found at Wis. Stat. § 19.37. For more information on enforcement and the remedies available under the law, please see the Wisconsin Public Records Law Compliance Guide, which is available for free download.
Q: How much time does an authority have to respond to my public records request?
A: Wisconsin public records law does not require an authority to respond to a public record request within a certain timeframe, such as one week, 10 days, or one month. The law says that an authority shall fill or deny a request “as soon as practicable and without delay.” As you can imagine, this leaves room for interpretation.
The Wisconsin Supreme Court has said that a reasonable amount of time to respond to a public records request depends on a number of factors. The factors include the nature of the request, the staff and resources available to process the request, the extent of the request, and other related considerations. In short, how long an authority has to respond to a request depends. Ten business days may be a reasonable response time for a simple request seeking a limited number of records that are easy to identify. However, as the Court has said, sometimes an authority can be swamped with public records requests and may need a substantial time to respond to a request.
An authority should take care to make responding to public records requests a priority. While there are many circumstances that can delay a response, an authority should make every reasonable effort to respond to requests in a timely fashion and in a way that does not leave the requester wondering if the authority has forgotten about his or her request. It is advisable for an authority to send an acknowledgment letter upon receipt of a public records request. The Office of Open Government also encourages maintaining an open line of communication between an authority and the requester. This helps avoid confusion or misunderstandings as to the status of a request.
It is worth noting that the public records law only requires an authority to respond to a requester if they fulfill or deny a response. The law does not require that an authority notify a requester in the event that the requested records do not exist. However, the OOG advises that an authority notify a requester if this is the case.
The bottom line is that authorities should make a good faith effort to respond to requests without undue delay and to communicate with the requester about the process. While the demands on authority staff can present challenges, authorities should take steps to ensure the public’s right of access remains a priority.
Q: What type of notice is required for a meeting of a governmental body?
A: The Wisconsin Open Meetings Law requires that public notice of every meeting of a governmental body must be provided at least 24 hours prior to the meeting. If, for good cause, such notice is impossible or impractical, shorter notice may be given, but in no case may the notice be less than two hours in advance of the meeting. (There is little guidance as to what constitutes “good cause”; like the entire open meetings law, this provision should be interpreted in favor of providing the public with the fullest and most complete information.) The law requires separate public notice for each meeting at a time and date “reasonably proximate to the time and date of the meeting.”
A governmental body’s chief presiding officer or his or her designee must provide notice to the following: the public; to news media who filed a written request for such notice; and to the official newspaper, or if there is no official newspaper, to a news medium likely to give notice in the area. Other statutes, other than the open meetings law, may also establish notice requirements for governmental body meetings.
The notice must provide the time, date, place, and subject matter of the meeting. The notice must be written such that it is reasonably likely to apprise members of the public and the news media of this information. Governmental bodies often provide notice to the public by paid publication or posting in one or more places likely to be seen by the public. Although not specifically required by the open meetings law, the Department of Justice has long recommended that a governmental body post in three separate physical locations. Posting notice on the governmental body’s website may be used as a supplement—but not a substitute—to the law’s notice requirements.
It is important to note that notice to the public and notice to a news medium are separate requirements. A governmental body is not required to pay for, and the news medium is not required to publish, notice provided to the news medium. However, if a governmental body seeks to provide notice to the public by paid publication in a news medium, the chief presiding officer must ensure that the notice is published.
Q: As a private citizen, do I have a right to speak at my city council’s public meetings?
A: The Wisconsin Open Meetings Law acknowledges the public is entitled to the fullest and most complete information regarding government affairs as long as it does not hinder the conduct of governmental business. All meetings of governmental bodies, such as a city council, shall be held publicly and be open to all citizens at all times unless otherwise expressly provided by law. The open meetings law does not require a governmental body to allow members of the public to speak or actively participate in an open session meeting. The law only grants citizens the right to attend and observe open meetings.
However, the law permits a governmental body to set aside a portion of an open meeting as a public comment period. While public comment periods are not required, if a governmental body decides to have such a comment period, it must be included in the meeting notice.
There are other state statutes—other than the open meetings law—that require governmental bodies to hold public hearings regarding certain matters. Unless such a statute specifically applies, a governmental body has wide discretion over any public comment period it chooses to permit. Besides the discretion over whether to allow public comments at all, a body also has discretion to decide to what extent it will allow public participation. For example, a governmental body can limit how much time each citizen may speak.
If a governmental body permits a public comment period, it may receive information from the public, and it may discuss any subject raised by a member of the public. A body may not take any formal action on such a subject unless it was identified in the body’s meeting notice. If a citizen raises a subject that is not included on the meeting notice, it may be advisable for the body to limit substantive discussion on the subject until a subsequent meeting in which the body can include the subject on the meeting notice.
Q: Does including a confidentiality notice at the end of a message shield the message from disclosure under the public records law?
A: The short answer is not necessarily. Confidentiality notices, are common, especially in the legal profession. Here is a common example:
CONFIDENTIALITY NOTICE: This message and any accompanying documents contain information belonging to the sender which may be confidential and legally privileged. This information is only for the use of the individual or entity to which it was intended. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this message and any accompanying documents is strictly prohibited. If you have received this message in error, please contact the sender immediately and delete the message. Thank you.
Many businesses, including lawyers and law firms include such notices as standard boilerplate at the end of their emails, fax cover sheets, and other communications. Many correspondences, notably in the legal profession, are confidential or privileged attorney-client communications. As a result, it is necessary to prevent the unauthorized or accidental transmission of a message to an unintended recipient and to avoid a claim that confidentiality or privilege has been waived.
Confidential or privileged attorney-client communications may be protected from disclosure under the public records law. However, just because a notice is included in a message does not necessarily mean that the message is confidential or privileged communication, nor does it shield it from public disclosure. No one, whether it is an individual, business, or law firm, can unilaterally exempt records from disclosure under the public records law just as one cannot nullify the public’s right of access through contract or private agreement. The content of the message determines whether the message is a record subject to disclosure under the public records law.
The public records law does not prohibit the inclusion of confidentiality notices in messages. In fact they can be useful. However, government employees should take great care when including such notices that they not be misunderstood as necessarily protecting the message from public disclosure.
Last Update: Mar 19, 2017 2:37 pm CDT
