Public Records

Records retention is a subject that is generally related to, but different from, the access requirements imposed by the public records law. The public records law only addresses how long an authority must keep its records once an authority receives a public records request. When a requester submits a public records request, the authority is obligated to preserve the requested records until after the request is granted or until at least 60 days after the request is denied (90 days if the requester is a committed or incarcerated person).

If the authority receives written notice that a requester has commenced a mandamus action (an action to enforce the public records law) regarding records, the authority may not destroy the records until after the court order relating to those records is issued and the deadline to appeal that order has passed. If the court order in a mandamus action is appealed, the authority may not destroy the records until a court order resolving the appeal is issued. If the court orders production of any record and the order is not appealed, the record may not be destroyed until after the request for inspection or copying has been granted. An authority does not violate this provision of the public records law by destroying an identical copy of an otherwise available record.

Other than this, the public records law does not address how long an authority must keep its records, and the public records law cannot be used to address an authority’s alleged failure to retain records required to be kept under other laws. Record retention is governed by other statutes. Wisconsin Stat. § 16.61 addresses the retention of records for state agencies, and Wis. Stat. § 19.21 deals with record retention for local government entities. Most often, record retention schedules, created in accordance with these statutes, govern how long an authority must keep its records and what it must do with them after the retention period ends. For example, after the retention period has ended, a retention schedule may authorize the authority to destroy a record or transfer it to the Wisconsin Historical Society. These schedules apply to groups or categories of records called records series. The Wisconsin Public Records Board’s website​ has additional information on record retention.

The Wisconsin Public Records Law permits an authority to impose a fee upon a requester but only for four specific tasks. An authority may charge for the following: (1) Reproduction and transcription of a record (this includes fees for copies); (2) photographing and photographic processing of a record; (3) locating a record; and (4) mailing or shipping a record. Although an authority is allowed to charge for these four tasks, the fee cannot exceed the actual, necessary, and direct cost of completing these tasks. An authority may not make a profit on its response to a public records request. The amount of such fees may vary depending on the authority. For example, the Department of Justice (DOJ) charges $0.0135 per page for black-and-white copies of records ($0.0632 per page for color copies), while other authorities may charge more or less. Please see DOJ's Public Records Request Fee Schedule for more information on DOJ's fees.

While the law permits an authority to impose a fee for locating records, it may only do so if the cost is $50.00 or more. Locating a record means to find it by searching, examining, or experimenting. Generally, the rate for an actual, necessary, and direct charge for staff time (such as for locating a record) should be based on the pay rate of the lowest paid employee capable of performing the task. Additionally, an authority may require prepayment for the costs associated with responding to a public records request if the total amount exceeds $5.00. An authority may not charge for the time it takes to redact records. For more information on permissible fees under the public records law, please see the Office of Open Government's advisory on fees.

Within the public records law, there is no specific indigency provision. However, an authority has discretion to provide requested records for free or at a reduced charge if it determines that doing so is in the public interest. It is up to each authority to determine whether or not to reduce its fees or waive them altogether.

Finally, other statutes may establish express exceptions to the general fee provisions of the public records law. For example, court records and records recorded by registers of deeds have fees set by other specific statutes. 

The public records law authorizes requesters to inspect or obtain copies of “records” created or maintained by an authority. Under the law, a “record” is defined, in part, as any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority. Essentially, content, not format, determines whether something is a record. It does not matter how or where the information is stored, whether it be on a piece of paper, in a database, or in an email.

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 enti​re 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:

1. A requester may file an action for mandamus by himself or herself, with or without the assistance of an attorney.
2. A requester may submit a written request asking the district attorney of the county where the record is found to pursue enforcement.
3. 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.

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.

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.