Wisconsin

Open Government Guide

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Author

James A. Friedman
Godfrey & Kahn, S.C.
One East Main Street, Suite 500
P.O. Box 2719
Madison, WI 53701-2719
Phone: 608-257-3911
Fax: 608-257-0609

Special thanks to the previous authors of this chapter, Robert A. Christensen and David Lucey from Foley & Lardner LLP.

Last updated Sept. 14, 2020

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Foreword

The Development of Public Access Law in Wisconsin

The very first Wisconsin statutes adopted after the organization of Wisconsin as a state provided for public access to the meetings and records of county government. Wis. Rev. Stat. Ch. 10, §§ 29, 37, 137 (1849). From that early starting point, the Wisconsin tradition of full public access to the affairs of government has grown steadily.

The original statute requiring county constitutional officers to have their records open for examination has survived virtually unchanged. Compare Wis. Rev. Stat. Ch. 10, § 137 (1849) with Wis. Stat. § 59.20(3) (2003-04). The policy of public access to records was extended to all state, county, city, town, village, school district and other municipality or district records by Wis. Laws Ch. 178 (1917). The Wisconsin Supreme Court interpreted this enactment as a codification of the common law. Int’l Union, UAW v. Gooding, 251 Wis. 362, 372–73, 29 N.W.2d 730, 735–36 (1947). At the same time, however, the court questioned the “mere curiosity” restriction on common law access, and that doctrine has never become part of the Wisconsin common law of public records. The 1917 law remained essentially unchanged until 1981, when the legislature adopted the present Open Records Law. Wis. Laws Ch. 135 (1981). This enactment expressly preserved “[s]ubstantive common law principles construing the right to inspect, copy or receive copies of records.” Wis. Stat. § 19.35 (1)(a) (2003–04).

Until 1959, a hodgepodge of statutes relating to various branches of government granted public access to some meetings. For example, in addition to the original 1849 statute protecting access to county meetings, an 1889 law required open meetings for other municipalities. Wis. Laws Ch. 326 (1889). This law became the foundation for the present comprehensive requirement of open meetings in 1959. Wis. Laws Ch. 289 (1959). The legislature substantially revised the 1959 act in 1973, Wis. Laws Ch. 297 (1973), and made minor revisions in 1975, Wis. Laws Ch. 426 (1975). As subsequently construed, the 1975 amendments served to broaden the scope of the law. State ex rel. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 97, 398 N.W.2d 154, 163 (1987).

In adopting the respective Open Meetings and Open Records laws, the legislature forcefully declared the state’s general policies concerning openness in government. Section 19.31 of the Wisconsin Statutes (2003–04) provides:

“In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be 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. Further, providing persons with such information is declared to be an 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, §§ 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.”

Section 19.81(1) of the Wisconsin Statutes (2003–04) provides:

“In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.”

The Wisconsin Supreme Court noted the state’s long tradition of open government: “If Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State. All branches of Wisconsin government have, over many years, kept a strong commitment to transparent government.” Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶ 1, 327 Wis. 2d 572, 786 N.W.2d 177.

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

“[A]ny requester has a right to inspect any record.” Wis. Stat. § 19.35(1)(a) (2003–04). A “requester” is generally any person who requests access to a record, but “committed or incarcerated” persons face certain restrictions on their access. Id. § 19.32(3). A person is not excluded from “requester” status because that person happens to be in litigation with the governmental body to which a request is addressed. See Cavey v. Walrath, 229 Wis. 2d 105, 109, 598 N.W.2d 240, 243 (Wis. Ct. App. 1999). The reference to persons “committed” was added to exclude people involuntarily committed to mental institutions after a court held that such people were not excluded as “incarcerated.” See Klein v. Wis. Res. Ctr., 218 Wis. 2d 487, 492–93, 582 N.W.2d 44, 46 (Wis. Ct. App. 1998) (“[W]hen the legislature amended the Open Records Law to prevent incarcerated persons from obtaining these types of records, it failed to include those individuals committed pursuant to ch. 980, Stats.”). A requester who is an individual (or the representative of an individual) has certain rights, beyond those granted to the general public, to inspect any record “containing personally identifiable information pertaining to the individual.” Wis. Stat. § 19.35(1)(am); Hempel v. City of Baraboo, 2005 WI 120, ¶ 33, 284 Wis. 2d 162, 699 N.W.2d 551, 561 (“[T]he right of inspection under paragraph (am) is in addition to any right under paragraph (a)” and within the narrow scope of matter “containing personally identifiable information pertaining to the individual” “is more unqualified than a right under paragraph (a).”) (emphasis in original).

An individual may inspect or copy a record containing information pertaining to that individual, notwithstanding that other persons may not, unless the information was collected in connection with a complaint, investigation or enforcement proceeding, or would endanger an individual’s life or safety, identify a confidential informant, endanger the safety of any state correctional institution, or compromise the rehabilitation of a person in the department of corrections. Wis. Stat. §§ 19.35(1)(am), 19.35(4)(c).

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2. Purpose of request

“Except as authorized under this paragraph, no request . . . may be refused because the person making the request is unwilling . . . to state the purpose of the request.” Wis. Stat. § 19.35(1)(i); but see Hempel v. City of Baraboo, 2005 WI 120, ¶ 66, 284 Wis. 2d 162, 599 N.W.2d 551, 568 (“When performing a balancing test, however, a records custodian inevitably must evaluate context to some degree,” including a requester’s motivation in seeking the documents). A person seeking greater access rights than the law provides to the subject of a government record must, of course, identify herself to the record custodian. See Wis. Stat. § 19.35(1)(am).

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3. Use of records

“[A] requester shall comply with any regulations or restrictions upon . . . use of information which are specifically prescribed by law.” Wis. Stat. § 19.35(1)(j).

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4. Can an individual request records on behalf of a third party or organization?

Nothing in the statutes or case law prevents an individual from requesting records on behalf of a third party or organization. See Wis. Stat. § 19.35(1)(am).

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B. Whose records are and are not subject to the Act

The records of all of the following government authorities are subject to the act:

“[S]tate or local office, elected official, agency, board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a local exposition district . . . ; a long-term care district . . . ; any court of law; the assembly or senate; a nonprofit corporation which receives more than 50 percent of its funds from a county or a municipality, as defined in § 59.001(3), and which provides services related to public health or safety to the county or municipality; . . . or a formally constituted subunit of any of the foregoing.”

Wis. Stat. § 19.32(1).

The records are subject to inspection whether they are kept by the authority itself or by one of its employees. See State ex rel. Blum v. Bd. of Educ., 209 Wis. 2d 377, 382, 565 N.W.2d 140, 142–43 (Wis. Ct. App. 1997) (“[S]ince an ‘authority,’ such as the Board, must act through its officers and employees, ‘[d]ocuments which otherwise fit the definition of “records” are “kept” by an authority whenever they are in the possession of an officer or employee who falls under the supervision of the “authority.”’ . . . A public body may not avoid the public access mandate of Chapter 19, STATS., ‘by delegating both [a] record’s creation and custody to an agent.’”). The records which county constitutional officers are required to keep in their offices, but only those records, are also subject to inspection under Wis. Stat. § 59.20(3). State ex rel. Schultz v. Bruendl, 168 Wis. 2d 101, 108–09, 483 N.W.2d 238, 240 (Wis. Ct. App. 1992).

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1. Executive branch

Executive branch records are not exempt.

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2. Legislative bodies

Legislative records are not exempt.

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3. Courts

Trial court records are subject to inspection under Wis. Stat. § 59.20(3) (formerly § 59.14), State ex rel. Bilder v. Twp. of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983), as well as the general Open Records Law. C.L. v. Edson, 140 Wis. 2d 168, 409 N.W.2d 417 (Wis. Ct. App. 1987). Appellate judicial records are not exempt.

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4. Nongovernmental bodies

A nonprofit legal aid society providing guardian ad litem services and receiving more than 50 percent of its funds from a county is subject to the Open Records law. Cavey v. Walrath, 229 N.W.2d 105, 106, 598 N.W.2d 240, 242 (Wis. Ct. App. 1999). But a not-for-profit charitable organization that leased and operated a historic school property was not a quasi-governmental entity and was not subject to the Open Records Law. State Ex rel. Flynn v. Kemper Ctr., Inc., 2019 WI App 6, 385 Wis. 2d 811, 924 N.W.2d 218. Nongovernmental records produced and collected under a governmental contract are covered. Wis. Stat. § 19.36(3); Journal/Sentinel Inc. v. Sch. Bd. of Shorewood, 186 Wis. 2d 443, 453, 521 N.W.2d 165, 170 (Wis. Ct. App. 1994). But see Machotka v. Village of West Salem, 233 Wis. 2d 106, 112, 607 N.W.2d 319, 322 (Wis. Ct. App. 2000) (upholding denial of access to municipal bond underwriter’s records identifying purchasers of bonds) (“Here, however, Baird did not contract to perform any duty for the Village other than to underwrite the bond issue. And its only obligation under that agreement was to purchase the bonds. Anything beyond that—such as Baird’s eventual sale of the bonds to others—was undertaken for Baird’s own purposes and its own benefit, not the Village’s.”); Wis. Prof’l Police Ass’n v. Wis. Ctys. Ass’n, 2014 WI App 106, 357 Wis. 2d 687, 855 N.W.2d 715 (unincorporated association of counties not subject to Open Records Law).

Nongovernmental groups’ records are not covered per se, but their records in the hands of a governmental official who has those records as part of her official duties are included.

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5. Multi-state or regional bodies

The records of these bodies are not specifically addressed but would certainly come under the Open Records law while within the possession, custody or control of a government official as part of his official duties.

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6. Advisory boards and commissions, quasi-governmental entities

Quasi-governmental entities’ records are included, as are officially designated advisory commissions, cf. Outagamie Cty. v. Smith, 38 Wis. 2d 24, 155 N.W.2d 639 (1968) (meetings of same) but unofficial boards and commissions are not, subject to (5). A private corporation that performs government functions may be subject to the Open Records law as a quasi-governmental corporation, based on the factors set forth in State v. Beaver Dam Area Dev. Corp., 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295.

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7. Others

Appointed bodies are included. A nonprofit humane society keeping records of dog impoundments pursuant to a delegated statutory duty is required to make those records public. State ex rel. Schultz v. Wellens, 208 Wis. 2d 574, 579, 561 N.W.2d 775, 778 (Wis. Ct. App. 1997) (“[I]t would be ironic to construe the Open Records Law to preclude public access to statutorily designated ‘public record[s]’ of a society designated by a county board to impound and dispose of dogs.”).

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

Essentially all information in the hands of the agencies and officers described above is subject to inspection. Section 19.21 of the Open Records law describes the reach of a public official’s custody of public records as follows:

“Each and every officer of the state, or of any . . . municipality or district, is the legal custodian of and shall safely keep and preserve all property and things . . . which are in the lawful possession or control of the officer . . . or to the possession or control of which the officer . . . may be lawfully entitled, as such officer[].”

Wis. Stat. § 19.21(1). An officer’s custody of records is not limited to records the officer is required by law to maintain, but extends to all records the officer actually maintains in his official capacity. Hathaway v. Green Bay Joint Sch. Dist. No. 1, 116 Wis. 2d 388, 393–94, 342 N.W.2d 682, 685 (1984). The records subject to inspection and copying under the Open Records law are defined as follows:

“‘Record’ means any material on which written, drawn, printed, spoken, visual or electromagnetic information or electronically generated or stored data is recorded or preserved, . . . that has been created or is being kept by an authority.”

Wis. Stat. § 19.32(2). See Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996) (private telephone records obtained by subpoena are “records” subject to the Open Records law while they remain in the custody of the district attorney). On the other hand, “drafts and notes . . . prepared for the originator’s personal use” are not “records” within the Open Records law. Wis. Stat. § 19.32(2); State v. Pankin, 217 Wis. 2d 200, 210, 579 N.W.2d 52 (Wis. Ct. App.) (judge’s personal notes compiled in connection with sentencing and placed in court file are not subject to inspection), review denied, 217 Wis. 2d 522, 580 N.W.2d 691 (1998). An authority cannot withhold an otherwise final document from inspection simply by labeling it as a “draft,” however. Fox v. Bock, 149 Wis. 2d 403, 417, 438 N.W.2d 589 (Wis. Ct. App. 1989).

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2. What physical form of records are covered

The statutory term “record” includes all such material, “regardless of physical form or characteristics,” including but not limited to “handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical discs.” Wis. Stat. § 19.32(2). “[A]s modern society rapidly adds to its sophisticated methods of data collection, it inevitably filters ‘the human mouth, tongue, [and] vocal cords’ through computer systems. A potent Open Records Law must remain open to technological advances so that its statutory terms remain true to the law’s intent.” State ex rel. Milwaukee Police Ass'n v. Jones, 237 Wis. 2d 840, 852, 615 N.W.2d 190, 196 (Wis. Ct. App. 2000) (holding that police department must make digital audio tape of 911 call available for inspection and copying, and that producing analog tape alone is not sufficient compliance with request).

The Open Records Law extends to all material on which information is recorded or preserved, “regardless of physical form or characteristics,” including “visual or electromagnetic information.” Wis. Stat. § 19.32(2). Further, public records custodians are required to furnish “facilities comparable to those used by its employees to inspect, copy and abstract the record during established office hours.” Wis. Stat. § 19.35(2). Thus, if a computer terminal is needed to inspect a record, and terminals are available to the public employees, the public custodian must, at its option, either provide a print-out of the information under Wis. Stat. § 19.35(1)(e), or make a terminal available to the requester.

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3. Are certain records available for inspection but not copying?

Pursuant to Wis. Stat. § 19.35(1)(L), “this subsection does not require an authority to create a new record by extracting information from existing records and compiling the information in a new format.”

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4. Telephone call logs

Telephone call logs are not exempt from disclosure.

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5. Electronic records (e.g., databases, metadata)

A custodian of public records is not required “to create a new record by extracting information from existing records and compiling the information in a new format.” Wis. Stat. § 19.35(1)(L). An authority is not required to give requesters direct “access to an authority’s electronic databases to examine them, extract information from them, or copy them.” WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ¶ 97, 310 Wis. 2d 397, 751 N.W.2d 736; see Media Placement Servs., Inc. v. Wis. Dep’t of Transp., 2018 WI App 34, 382 Wis. 2d 191, 913 N.W.2d 224 (news media not entitled to free access to government web portal).

Wisconsin has not addressed this issue, but metadata likely fits the definition of “record” under Wis. Stat. § 19.32(2).

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a. Can the requester choose a format for receiving records?

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b. Can the requester obtain a customized search of computer databases to fit particular needs

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c. Does the existence of information in electronic format affect its openness?

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d. Online dissemination

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6. Email

The Supreme Court ruled 5-2 that “purely personal e-mail” sent or received by public employees on government computers is not subject to disclosure under the Open Records law. Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177. E-mail “must have a connection to a government function” to be subject to disclosure. Id., ¶ 23. Personal e‑mail that is “used as evidence in a disciplinary investigation or to investigate the misuse of government resources” is presumed public, as is e-mail that relates to government duties. Id., ¶ 141.

The lead opinion in Schill, joined by three justices, would hold that purely personal e-mail is not within the definition of “record” under Wis. Stat. § 19.32(2). Id., ¶ 23. Two concurring justices, id., ¶¶ 153, 173, and two dissenting justices, ¶ 211, concluded the definition of “record” includes purely personal e-mail. Requesters are entitled to emails in electronic form. Lueders v. Krug, 2019 WI App 36, 388 Wis. 2d 147, 931 N.W. 2d 898.

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7. Text messages and other electronic messages

Wisconsin has not addressed this issue, but text messages and other electronic messages likely fit the definition of “record” under Wis. Stat. § 19.32(2).

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8. Social media posts

Wisconsin has not addressed this issue, but social media postings likely fit the definition of “record” under Wis. Stat. § 19.32(2).

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9. Computer software

The statutory definition of “record” includes “tapes (including computer tapes) computer printouts and optical disks,” but excludes “materials to which access is limited by copyright . . . .” Wis. Stat. § 19.32(2). Wisconsin courts have not expressly addressed whether the Open Records Law applies to software.

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10. Can a requester ask for the creation or compilation of a new record?

Pursuant to Wis. Stat. § 19.35(1)(L), “this subsection does not require an authority to create a new record by extracting information from existing records and compiling the information in a new format.”

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

An authority may impose a fee for the actual, necessary and direct costs of reproduction and transcription or photographing a record unless a fee is otherwise provided by law or authorized to be provided by law. Wis. Stat. § 19.35(3)(a)(b).

If the person wanting a copy of a record appears in person, the authority has the option of requiring the person to make a copy or providing the person with a copy. Wis. Stat. § 19.35(1)(b). But this option is not available when the requester submits the request by mail. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549 N.W.2d 253 (Wis. Ct. App. 1996).

An authority may not charge for the cost of redacting records. Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, 341 Wis. 2d 607, 815 N.W.2d 367.

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2. Particular fee specifications or provisions

A search fee may be imposed if the actual, necessary and direct cost of locating the record exceeds $50, unless otherwise provided or authorized to be prescribed by law. Wis. Stat. § 19.35(3)(c); Osborn v. Bd. of Regents, 2002 WI 83, ¶ 46, 254 Wis. 2d 266, 303-04, 647 N.W.2d 158, 176.

Fees can in general be imposed for the “actual, necessary and direct costs of reproduction.” Wis. Stat. § 19.35(3)(a); Osborn, 2002 WI 83, ¶ 46, 254 Wis. 2d at 303–04, 647 N.W.2d at 176. If the record is produced by a contractor on behalf of a governmental authority, the contractor’s fee may not exceed the “actual, necessary and direct costs of reproduction,” unless otherwise provided by law. Wis. Stat. § 19.35(3)(g).

An authority may impose a fee upon a requester for the actual, necessary and direct cost of mailing or shipping of any copy or photograph of a record which is mailed or shipped to the requester. Wis. Stat. § 19.35(3)(d).

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3. Provisions for fee waivers

An authority may waive fees where a waiver or reduction of the fee is in the public interest. Wis. Stat. § 19.35(3)(e).

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4. Requirements or prohibitions regarding advance payment

Prepayment of fees may be required if the total amount of the fee will exceed $5. Wis. Stat. § 19.35(3)(f). When the fees are below this amount, the custodian does not have the option to request prepayment or to require the requester to come to the custodian’s office to obtain a copy. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549 N.W.2d 253 (Wis. Ct. App. 1996).

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5. Have agencies imposed prohibitive fees to discourage requesters?

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6. Fees for electronic records

Fees for electronic records, like all others, may not exceed “the actual, necessary and direct cost of providing the information.” WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ¶ 107, 310 Wis. 2d 397, 751 N.W.2d 736; see Media Placement Servs., Inc. v. Wis. Dep’t of Transp., 2018 WI App 34, 382 Wis. 2d 191, 913 N.W.2d 224 (news media not entitled to free access to government web portal).

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E. Who enforces the Act?

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1. Attorney General's role

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2. Availability of an ombudsman

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3. Commission or agency enforcement

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F. Are there sanctions for noncompliance?

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G. Record-holder obligations

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1. Search obligations

Wisconsin has not addressed this issue.

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2. Proactive disclosure requirements

Nothing in the Open Records Law requires proactive disclosure.

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3. Records retention requirements

“No authority may destroy any record at any time after the receipt of a request for inspection or copying of the record . . . until after the request is granted or until at least 60 days after the date that the request is denied . . . .” Wis. Stat. § 19.35(5). The legislature, state agencies, and the Wisconsin Public Records Board establish retention periods for specific records.

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4. Provisions for broad, vague, or burdensome requests

“A request for a record without a reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request.” Wis. Stat. § 19.35(1)(h).

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II. Exemptions and other legal limitations

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A. Exemptions in the open records statute

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1. Character of exemptions

Wisconsin is basically a common-law state with a statutory presumption that almost all government records are public and statutory procedures for access. As declared by the Wisconsin Supreme Court, this requires that the presumed public interest in inspection must be balanced against the asserted public interest in withholding inspection in the specific case:

“Thus the right to inspect public documents and records at common law is not absolute. There may be situations where the harm done to the public interest may outweigh the right of a member of the public to have access to particular public records or documents. Thus, the one must be balanced against the other in determining whether to permit inspection.”

State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 681, 137 N.W.2d 470, 474 (1965), modified on reh’g, 28 Wis. 2d 672, 139 N.W.2d 241 (1966). On the other hand, “[i]f the information requested is covered by an exempting statute that does not itself require a balancing of public interests, . . . there is no need for a custodian to conduct such a balancing. . . . The legislature has presumably already weighed the competing public interests and the custodian may or may not be aware of the legislature’s rationale for the exempting statute.” State ex rel. Savinski v. Kimble, 221 Wis. 2d 833, 840, 586 N.W.2d 36, 39 (Wis. Ct. App. 1998). There are, as noted in II.B., numerous specific statutory exceptions to the presumption of public access and general balancing test.

Examples of records opened to public inspection under the balancing test are:

(1)       Statements taken in the course of a closed investigation into alleged, but not found, police misconduct were opened for public inspection on the ground that:

“In the instant situation the public interest to be served by permitting inspection is to inform the public whether defendant mayor has been derelict in his duty in not instigating disciplinary proceedings against policemen because of wrongful conduct disclosed in the report. If the report contains statements of persons having first-hand knowledge, which disclose police misconduct, the fact that reputations may be damaged would not outweigh the benefit to the public interest in obtaining inspection. On the other hand, statements based upon hearsay or suspicion, or inconclusive in nature, would be of small public benefit if made public, and might do great harm to reputations.”

State ex rel. Youmans, 28 Wis. 2d at 685, 137 N.W.2d at 476. But see Hempel v. City of Baraboo, 2005 WI 120, ¶¶ 69–78, 284 Wis. 2d 162, 699 N.W.2d 551, 568–70 (in sexual harassment investigation of police officer in which city had released substantial information about the nature of the allegations with names redacted, city’s interest in preserving the confidentiality of informants and protecting the privacy of sexual harassment victim outweighed public interest in disclosure of redacted identities).

(2)       Data relating to abortions performed at a public hospital, including the identity of doctors performing same, counseling procedures and numbers of abortions performed, on the ground that:

“The petition on its face encompasses only records which the trial court properly described as statistical records, administrative records and records which are not personal to or identifiable with individual patients. The petition thus states a cause of action under § 19.21, Stats., and the motion to quash was properly denied.”

State ex rel. Dalton v. Mundy, 80 Wis. 2d 190, 197, 257 N.W.2d 877, 881 (1977).

(3)       Police blotters, without exception, on the ground that:

“Because of the statutory and common-law presumption that public records should be available to the public and because of the strong public-policy interests in making the arrest records public, those interests clearly outweigh the amorphous, ill-defined interests that the public might have in the protection of the reputations of persons who have been arrested. As stated above, the balance of policy considerations in respect to the particular records does not vary from case to case.

We hold as a matter of law that the harm to the public interest in the form of possible damage to arrested persons’ reputations does not outweigh the public interest in allowing inspection of the police records which show the charges upon which arrests were made.”

Newspapers Inc. v. Breier, 89 Wis. 2d 417, 439–40, 279 N.W.2d 179, 190 (1979).

(4)       Pupil parents’ names and addresses. Hathaway v. Joint Sch. Dist. No. 1, 116 Wis. 2d 388, 342 N.W.2d 682 (1984)

(5)       Records of personnel actions taken at closed meetings. Jensen v. Sch. Dist. of Rhinelander, 2002 WI App 78, ¶ 14, 251 Wis. 2d 676, 684, 642 N.W.2d 638, 642 (diminished reputational interests of school superintendent who had already been placed on administrative leave did not warrant withholding from public inspection school board’s employment evaluation of superintendent’s performance); Oshkosh Nw. Co. v. Oshkosh Library Bd., 125 Wis. 2d 480, 373 N.W.2d 459 (Wis. Ct. App. 1985). While police officer personnel files generally are not subject to inspection, see Pangman & Assocs. v. Stigler, 161 Wis. 2d 828, 468 N.W.2d 784 (Wis. Ct. App. 1991), specific reports of police conduct may be open to inspection under the balancing test. State ex rel. Journal/Sentinel Inc. v. Arreola, 207 Wis. 2d 496, 513–19, 558 N.W.2d 670 (Wis. Ct. App. 1996).

(6)       Settlement agreements of private parties when subject to court approval, In re Estates of Zimmer, 151 Wis. 2d 122, 442 N.W.2d 578 (Wis. Ct. App. 1989), and settlement agreements of government authorities whether or not filed in court. Journal/Sentinel, Inc. v. Sch. Bd. of Sch. Dist. of Shorewood, 186 Wis. 2d 443, 459, 521 N.W.2d 165 (Wis. Ct. App. 1994) (“Taxpayers of a community have a right to know how and why their money is spent.”).

(7)       Mug shots. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549 N.W.2d 253 (Wis. Ct. App. 1996).

In Wisconsin, custodians of public records may be required to notify record subjects before publicly disclosing records pertaining to them to allow the record subject to seek de novo judicial review of the custodian’s application of the balancing test. See Woznicki v. Erickson, 202 Wis. 2d 178, 191–93, 549 N.W.2d 699, 705 (1996) (subject of records acquired by district attorney in a criminal investigation is entitled to judicial review of district attorney’s decision to release records). In Milwaukee Teachers’ Educ. Ass’n v. Milwaukee Bd. of Sch. Dirs., 227 Wis. 2d 779, 797–98, 596 N.W.2d 403, 411 (1999), the court extended this holding to all custodians of public records. Id. (“[W]e hold that the implicit right of a de novo judicial review of a public records custodian’s decision recognized by this court in Woznicki is available to an individual public employee whose privacy or reputational interests would be impacted by disclosure of records requested under the Open Records Law. This right of de novo judicial review applies whether or not the custodian of the records is a district attorney.”) The legislature in 2003 narrowed the Woznicki right to notice and judicial review to records of disciplinary actions and investigations, records obtained by warrant or subpoena, and records concerning private sector employees. Wis. Stat. § 19.356.

Wisconsin does not follow federal FOIA exemptions.

“Wisconsin courts have more effectively enforced the public records statute, § 19.21 [now § 19.31-.39], than federal courts have enforced the federal Freedom of Information Act. Unquestionably, the lesser effectiveness of the federal courts is due in part to the consignment by Congress of nine categories of information to the exemption discretion of federal agencies.”

In re Wis. Family Counseling Servs. Inc., v. State, 95 Wis. 2d 670, 672–73, 291 N.W.2d 631, 633–34 (Wis. Ct. App. 1980) (footnote omitted). On the other hand, the Wisconsin Supreme Court has more recently touted the FOIA exemption for law enforcement records, 5 U.S.C. § 552(b)(7) (2000), as “concisely list[ing] the factors that support . . . public policies” that weigh against disclosure of police records. Linzmeyer v. Forcey, 2002 WI 84, ¶ 32, 254 Wis. 2d 306, 328, 646 N.W.2d 811, 820. The Linzmeyer decision even suggested that FOIA factors “provide a framework that records custodians can use to determine whether the presumption of openness in law enforcement records is overcome by another public policy.” Id., ¶ 33, 254 Wis. 2d at 329, 646 N.W.2d at 820.

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2. Discussion of each exemption

In keeping with the Wisconsin statute’s deference to common law principles, only a few exemptions are listed in the Open Records law itself.

19. Law enforcement records required to be closed by federal law. Wis. Stat. § 19.36(2).
20. Computer programs, but not the material used as input for the computer program or the material produced as its product, are exempt from inspection and copying. Wis. Stat. § 19.36(4); State ex rel. Milwaukee Police Ass’n v. Jones, 237 Wis. 2d 840, 852, 615 N.W.2d 190, 196 (Wis. Ct. App. 2000) (holding that police department must make digital audio tape of 911 call available for inspection and copying, and that provision of analog tape alone is not sufficient compliance with request).
21. Trade secrets, as defined under the Uniform Trade Secrets Act, are exempt from inspection. Wis. Stat. § 19.36(5).
22. Identity of applicants for public positions who request confidentiality, but not including those applicants who become “final candidates.” Wis. Stat. § 19.36(7).
23. Identity of law enforcement informants; Wis. Stat. § 19.36(8); Hempel v. City of Baraboo, 2005 WI 120, ¶¶ 69–78, 284 Wis. 2d 162, 699 N.W.2d 551, 568–70 (regardless of whether an informant requests confidentiality and regardless of whether a pledge of confidentiality is made, custodian must withhold information identifying a police informant unless the custodian determines that the public interest in disclosing the information outweighs the harm to the public interest in disclosing it).
24. Plans or specification of state buildings. Wis. Stat. § 19.36(9).
25. Certain employee personnel records, including personal information like home address, home telephone number or social security number, Wis. Stat. § 19.36(10)(a); information related to ongoing disciplinary investigations, Wis. Stat. § 19.36(10)(b); information related to civil service examinations, Wis. Stat. § 19.36(10)(c); and information used for staff management planning, including performance evaluations. Wis. Stat. § 19.36(10)(d). The “staff management planning” exemption does not apply to records of completed disciplinary investigations. Kroeplin v. Wisc. Dep’t of Nat. Res., 2006 WI App 227, ¶ 32, 297 Wis. 2d 254, 725 N.W.2d 297.
26. Financial identifying information, such as personally identifiable information like credit or debit card numbers, checking or draft account numbers, unless specifically required by law. Wis. Stat. § 19.36(13).

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B. Other statutory exclusions

“Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure under s. 19.35(1) . . . .” Wis. Stat. § 19.36(1). Any federal law invoked as an exemption must be specifically applicable to the custodian being asked to release the record in question. Atlas Transit Inc. v. Korte, 2001 WI App 286, ¶¶ 21–22, 249 Wis. 2d 242, 257–58, 638 N.W.2d 625, 632 (federal Driver Privacy Protection Act limiting authority of state motor vehicle departments to release information did not exempt school district records of school bus drivers from disclosure under the Open Records Act). There are numerous state statutes providing exemptions from disclosure. A substantially complete list follows this outline as Appendix A.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

The following categories of records are generally exempt from public inspection as a matter of common law: “Documentary evidence in the hands of a district attorney, minutes of a grand jury, evidence in a divorce action ordered sealed by the court,” Int’l Union v. Gooding, 251 Wis. 362, 372, 29 N.W.2d 730, 736 (1947), followed in State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991); Democratic Party of Wis. v. Wis. Dep’t of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584 (videos used for training prosecutors, based on actual cases, are exempt); and information gained under an express pledge of confidentiality where the information was not otherwise available, Mayfair Chrysler-Plymouth Inc. v. Baldarotta, 162 Wis. 2d 142, 165–68, 469 N.W.2d 638, 647–48 (1991); State ex rel. Youmans, 28 Wis. 2d at 681, 137 N.W.2d at 474.

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D. Protective orders and government agreements to keep records confidential

Protective orders overcome the Open Records Law.  Government contracts with confidentiality agreements generally are subject to the balancing test.  See Journal Sentinel v. Sch. Bd. of Shorewood, 186 Wis. 2d 443, 521 N.W.2d 165 (Ct. App. 1994).

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E. Interaction between federal and state law

“Any record which is specifically exempted from disclosure by state or federal law . . . is exempt from disclosure under s. 19.35(1).”  Wis. Stat. § 19.36(1).

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1. HIPAA

There is nothing specific to HIPAA in the Open Records Law.

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2. DPPA

The Open Records Law is not preempted by the DPPA.  New Richmond News v. City of New Richmond, 2016 WI App 43, 370 Wis. 2d 75, 881 N.W.2d 339.

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3. FERPA

Wisconsin has a statute that provides similar protections to FERPA for pupil records.  Wis. Stat. § 118.125; see S.P.A. v. Grinnell Mut. Reins. Co., 2011 WI App 31, 332 Wis. 2d 134, 796 N.W.2d 874.

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4. Other

Federal law mandated closure of information pertaining to immigration detainees in county jail, regardless of Wisconsin Open Records Law. Voces de la Frontera, Inc. v. Clarke, 2017 WI 16, 373 Wis. 2d 348, 891 N.W.2d 803.

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F. Segregability requirements

Custodians are required to segregate producible portions of records from portions that are exempt from disclosure. Wis. Stat. § 19.36(6). This statute mandates redaction whenever possible and “does not give a custodian . . . the option of separating the information or simply denying the open records request.” Osborn v. Bd. of Regents, 2002 WI 83, ¶ 45, 254 Wis. 2d 266, 302, 647 N.W.2d 158, 175 (university is not relieved of its duty to redact under section 19.36(6) simply because it is burdensome to do so).

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G. Agency obligation to identify basis of redaction or withholding

“If an authority denies a written request in whole or in part, the requestor shall receive from the authority a written statement of the reasons for denying the written request.” Wis. Stat. § 19.35(4)(b).

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Autopsy reports are subject to the balancing test. Journal/Sentinel Inc. v. Aagerup, 145 Wis. 2d 818, 429 N.W.2d 772 (Wis. Ct. App. 1988). If a coroner’s inquest is conducted in secret, the record of the inquest is also closed. Wis. Stat. § 979.08(7).

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Administrative enforcement records are presumed public but subject to withholding in a proper case under the common law balancing test.

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C. Bank records

Bank examination reports are closed. Wis. Stat. § 220.06(1).

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D. Budgets

Budget records are presumed public but subject to withholding in a proper case under the common law balancing test.

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E. Business records, financial data, trade secrets

Trade secrets, as defined in the Uniform Trade Secrets Act, Wis. Stat. § 134.90(1)(c), may be closed. Wis. Stat. § 19.36(5). Business records not amounting to trade secrets are open to public inspection (presumably subject to common-law balancing). Wis. Elec. Power Co. v. Pub. Serv. Comm’n, 110 Wis. 2d 530, 329 N.W.2d 178 (1983); 77 Wis. Op. Att’y Gen. 20 (Feb. 10, 1988).

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F. Contracts, proposals and bids

Contracts, proposals and bids are subject to the balancing test, but may be closed if competitive or bargaining reasons require. Cf. Wis. Stat. § 19.85(1)(e), § 19.35(1)(a).

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G. Collective bargaining records

Collective bargaining records are subject to the balancing test, but may be closed if competitive or bargaining reasons require. Cf. Wis. Stat. § 19.85(1)(e), § 19.35(1)(a). A tentative agreement must be disclosed to the public and considered by the governmental body in open session before ratification. Wis. Stat. § 19.85(3).

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H. Economic development records

Economic development records are presumed public but subject to withholding where competitive or bargaining reasons require under the common law balancing test. See also State v. Beaver Dam Area Dev. Corp., 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295 (private corporation that performs government functions may be subject to Open Records and Open Meetings laws as a “quasi-governmental corporation.”).

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I. Election Records

Election returns are open to public inspection. Wis. Stat. § 5.89.

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J. Emergency Medical Services records

Most emergency service medical records are considered confidential health care records. Wis. Stat. § 256.15(12)(a). However, an ambulance service provider may make available some basic information concerning an event, including the date, time, location, and reason for the ambulance dispatch, and the name, age, and gender of the patient. Wis. Stat. § 256.15(12)(b).

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K. Gun permits

Concealed carry license records are not public except in the context of a prosecution. Wis. Stat. § 175.60(12)(c).

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L. Homeland security and anti-terrorism measures

While Wisconsin is generally a common law state and does not list exhaustively any exemptions, there are a few specific exemptions related to homeland security: Any record relating to investigative information obtained for law enforcement purposes to be withheld from public access, Wis. Stat. § 19.36(2); identities of law enforcement informants, Wis. Stat § 19.36(8); records of plans or specifications for state buildings, Wis. Stat. § 19.36(9).

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M. Hospital reports

Individual hospital and medical records are not subject to inspection. Wis. Stat. § 146.82. Ambulance records of treatment and condition of the patient are treated as health care records for this purpose, but other information is public. Wis. Stat. § 256.15(12). Data collected from such records, however, which is not identifiable by patient is subject to inspection. State ex rel. Dalton v. Mundy, 80 Wis. 2d 190, 257 N.W.2d 877 (1977).

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N. Personnel records

There is no blanket exemption of public employee personnel records from the Open Records law. Wis. Newspress Inc. v. Sheboygan Falls Sch. Dist., 199 Wis. 2d 768, 781–82, 546 N.W.2d 143, 148 (1996). Municipal and county personnel records are subject to the common-law balancing test. Cf. State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W. 2d 470 (1965), modified on reh’g, 139 N.W.2d 241 (1966); Jensen v. Sch. Dist. of Rhinelander, 2002 WI App 78, ¶ 22, 251 Wis. 2d 676, 688, 642 N.W.2d 638, 643–44 (diminished reputational interests of school superintendent, prominent public official, who had already been placed on administrative leave did not warrant withholding from public inspection school board’s employment evaluation of superintendent’s performance). However, as a general proposition, complete personnel files of police officers are not subject to public inspection as a matter of public policy. Village of Butler v. Cohen, 163 Wis. 2d 819, 472 N.W.2d 579 (Wis. Ct. App. 1991); Pangman & Assocs. v. Zellmer, 163 Wis. 2d 1070, 473 N.W.2d 538 (Wis. Ct. App. 1991); but see Local 2489, AFSCME v. Rock Cty., 2004 WI App 210, 277 Wis. 2d 208, 689 N.W.2d 644 (public employees of a law enforcement agency give up certain privacy rights and are subject to public scrutiny; release of records of completed investigation regarding sheriff’s deputies viewing Internet pornography on the job would not be deferred pending outcome of arbitrations challenging sheriff’s discipline of such deputies); Kroeplin v. Wis. Dept. of Nat. Res., 2006 WI App 227, ¶ 46, 297 Wis. 2d 254, 287, 725 N.W.2d 286, 302 (“The public interest in being informed both of the potential misconduct by law enforcement officers and of the extent to which such misconduct was properly investigated is particularly compelling.”). The records of undercover officers are not subject to inspection. Pangman & Assocs. v. Stigler, 161 Wis. 2d 828, 468 N.W.2d 784 (Wis. Ct. App. 1991).

Personnel records of private companies that contract with governmental bodies are not thereby rendered subject to inspection under the Open Records law. Kraemer Bros. Inc. v. Dane Cty., 229 Wis. 2d 86, 99, 599 N.W.2d 75, 82 (Wis. Ct. App. 1999) (“We conclude there is a public interest in disclosure of the names, but, in light of the indirect link between that disclosure and the activities of the contracting municipalities, and in light of the existing means of assuring compliance by the municipality, it is not a strong one.”); Bldg. and Const. Trades Council of S. Cent. Wis. v. Waunakee Comm. Sch. Dist., 221 Wis. 2d 575, 585, 585 N.W.2d 726, 730 (Wis. Ct. App. 1998) (“the ‘nature’ of the documents the Council seeks is that they are, in the first instance, private records which may assume a status equivalent to that of public records . . . only if they have been produced or collected under a contract between the District and Cullen, which they plainly were not.”); but see Atlas Transit Inc. v. Korte, 2001 WI App 286, ¶¶ 16–17, 249 Wis. 2d 242, 253–54, 638 N.W.2d 625, 630–31 (lists of school bus drivers filed by private bus companies with school district are not akin to personnel records and are generally subject to public inspection).

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1. Salary

Public employee salaries generally are available for public inspection.

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2. Disciplinary records

Disciplinary records are available for public inspection, subject to the balancing test, once the investigation is closed. Wis. Stat. § 19.36(10)(b); see Hagen v. Bd. of Regents, 2018 WI App 43, 383 Wis. 2d 567, 916 N.W.2d 198 (records concerning closed investigation into complaint against university professor open for inspection).

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3. Applications

The identity of an applicant for appointment to a non-classified position is not subject to inspection, if the applicant so requests in writing, unless the applicant becomes one of the final candidates for that position. Wis. Stat. § 19.36(7).

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4. Personally identifying information

Personally identifying information concerning “the home address, home electronic mail address, home telephone number or social security number of” public employees or officials must be removed from public records before disclosure. Wis. Stat. § 19.36(10), (11).

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5. Expense reports

Expense reports are available for public inspection, subject to the balancing test.

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6. Evaluations/performance reviews

Performance evaluations are exempt from disclosure if they are used by the employer for staff management planning. Wis. Stat. § 19.36(10)(d). Otherwise they are available for public inspection, subject to the balancing test.

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7. Complaints filed against employees

Complaints are available for public inspection, subject to the balancing test, once the investigation is closed. Wis. Stat. § 19.36(10)(b).

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8. Other

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O. Police records

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1. Accident reports

Accident reports are public records without regard to the common law balancing test. Wis. Stat. § 346.70(4)(f).

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2. Police blotter

Police blotters are public records without regard to the common law balancing test because “in every case the fact of an arrest and the charge upon which the arrest is made is a matter of legitimate public interest.” See Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 436, 279 N.W.2d 179 (1979).

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3. 911 tapes

There is no authority with respect to 911 tapes per se. However, radio logs are generally subject to inspection. 67 Wis. Op. Att’y Gen. 12 (Jan. 25, 1978). Requests seeking copies of 911 tapes, like all other requests, must be reasonably limited and defined. See Schopper v. Gehring, 210 Wis. 2d 208, 213, 565 N.W.2d 187, 189–90 (Ct. App. 1997) (“We agree that to require a custodian of a record to engage in the copying 180 hours of tape and the creation of a log to identify the time and the order in which the transmissions were received represent a burden far beyond that which may reasonably be required of a custodian of a public record. ‘[A] request for a record without a reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request.’”).

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4. Investigatory records

The assertion that a criminal matter “remains an open and ongoing investigation” is not a sufficiently specific justification for refusing public access to a police incident report. Portage Daily Register v. Columbia Cty. Sheriff’s Dep’t, 2008 WI App 30, ¶ 13, 308 Wis. 2d 357, 366, 746 N.W.2d 525, 529. Non-disclosure may be justified under the balancing test, on a case-by-case basis, if the custodian can show “that disclosure would interfere with an ongoing investigation.” Id., ¶ 20.

Investigatory records generally are subject to the common law balancing test. Appleton Post-Crescent v. Janssen, 149 Wis. 2d 294, 441 N.W.2d 255 (Ct. App. 1989); Journal/Sentinel Inc. v. Aagerup, 145 Wis. 2d 818, 429 N.W.2d 772 (Ct. App. 1988). Basic factual information contained in police reports of firearms discharges by police officers are subject to inspection under this balancing, but police supervisors evaluative comments about the discharges are not. State ex rel. Journal/Sentinel Inc. v. Arreola, 207 Wis. 2d 496, 513–19, 558 N.W.2d 670, 677–79 (Ct. App. 1996). Investigatory records in the hands of the district attorney are absolutely immune from public inspection. State ex rel. Richard v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991). Juvenile investigatory records are not open to inspection except for newsgatherers who wish to obtain news without revealing the identity of the child. Wis. Stat. § 48.396(1).

When an investigation is closed and no prosecution or disciplinary action is either ongoing or contemplated, there is no risk that releasing a police report will interfere with an enforcement proceeding or jeopardize anyone’s right to a fair trial. Linzmeyer v. Forcey, 2002 WI 84, ¶ 39, 254 Wis. 2d 306, 331, 646 N.W.2d 811, 821. A law enforcement agency’s internal investigation is deemed closed when the agency has taken disciplinary action; it does not remain open because of the possibility of review in arbitration. Local 2489, AFSCME v. Rock Cty., 2004 WI App 210, ¶ 20, 277 Wis. 2d 208, 225, 689 N.W.2d 644, 653 (fact that sheriff must defend disciplinary action in arbitration does not mean that records of prior, completed investigation become immune from disclosure pending outcome of arbitration).

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5. Arrest records

Records such as the police blotter reporting on arrests in chronological order are subject to inspection, but “rap sheets” compiling an individual’s arrest history are probably not. Newspapers Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979).

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6. Compilations of criminal histories

The exemption set forth in § 19.36(2), exempting investigative information obtained for law enforcement purposes from public access “whenever federal law or regulations require or as a condition to receipt of aids by this state require” was intended to permit compliance with 42 U.S.C. § 3789g(b) and 28 C.F.R. § 20 et seq. (criminal history information obtained through support of federal government only to be used for “lawful purposes”).

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7. Victims

There is no statute expressly restricting access to the identity of victims; however, Wis. Stat. § 950.04(1v)(ag), (1v)(dr), and (2w)(dm) protect victims from the inappropriate release of their personal information. The record created on procedures for the award of compensation to victims is generally subject to public inspection unless otherwise provided by law. Wis. Stat. § 949.16.

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8. Confessions

Confessions are subject to the balancing test.

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9. Confidential informants

Information that would identify a confidential informant must be deleted from a public record before disclosure. Wis. Stat. § 19.36(8).

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10. Police techniques

Investigatory records generally are subject to the common law balancing test. Appleton Post-Crescent v. Janssen, 149 Wis. 2d 294, 441 N.W.2d 255 (Ct. App. 1989); Journal/Sentinel Inc. v. Aagerup, 145 Wis. 2d 818, 429 N.W.2d 772 (Ct. App. 1988). A district attorney has the discretion to withhold its investigatory records. State ex rel. Richard v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991). Juvenile investigatory records are not open to inspection except for news gatherers who wish to obtain news without revealing the identity of the child. Wis. Stat. § 48.396(1).

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11. Mugshots

A mugshot is a public record. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549 N.W.2d 253 (Wis. Ct. App. 1996).

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12. Sex offender records

Records of sexually violent person commitments under Wis. Stat. Chapter 980 are presumed public.

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13. Emergency medical services records

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14. Police video (e.g, body camera footage, dashcam videos)

“Data from a body camera used on a law enforcement officer [is] subject to the right of inspection and copying ….”  Wis. Stat. Ann. § 165.87(3)(b).  However, body-worn camera records or portions thereof are not available to the public when, for instance, the subject of the recording is “is a victim of a sensitive or violent crime” or a minor and the public interest is outweighed by the privacy interests of such a person.  Wis. Stat. Ann. § 165.87(3)(c)(1).  “In that case, the record subject's face and anything else that would allow the record subject to be identified may be redacted using pixelization or another method of redaction.”  Id.  That being said, in the case where the victim of a sensitive or violent crime (though, notably, not a minor) does not object to disclosure, the presumption of privacy is overcome by the public interest.  Id.   Similarly, body-worn camera recordings or portions thereof that depict a subject “who is in a location where the record subject has a reasonable expectation of privacy” and does not consent to release of the recording may only be disclosed if the public interest outweighs the subject’s privacy interest.  Wis. Stat. Ann. § 165.87(3)(c)(2)

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15. Biometric data (e.g., fingerprints)

Biometric data is available for inspection, subject to the balancing test.

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16. Arrest/search warrants and supporting affidavits

Arrest and search warrants are available for public inspection, subject to the balancing test, but usually only after charges have been filed, or the investigation is otherwise closed.

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17. Physical evidence

Physical evidence is available for inspection, subject to the balancing test.

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P. Prison, parole and probation reports

Presentence investigation reports are, after sentencing, “confidential and shall not be made available to any person except upon specific authorization of the court.” Wis. Stat. § 972.15(4). Correctional facilities are required to maintain a register of inmates, Wis. Stat. § 302.17. This record is presumably subject to inspection under the balancing test. Information submitted with respect to parole hearings is generally subject to public inspection except to the extent the parole board decides on a case-by-case basis to restrict information or to the extent the information is otherwise statutorily restricted from public inspection. Wis. Admin. Code § HSS 30.05(3c) (1987). Records which would endanger the security of any state correctional institution or compromise the rehabilitation of a person in the custody thereof are excluded from inspection. Wis. Stat. § 19.35(1)(am)(2)(c)–(d). Denial of access to documents identifying persons who supply information to the parole commission has been upheld. State ex rel. Bergmann v. Faust, 226 Wis. 2d 273, 288, 595 N.W.2d 75, 82 (Wis. Ct. App. 1999) (“We hold that protecting persons who supply information or opinions about an inmate to the parole commission from harassment, retaliation or other harm is a public interest that may, on balance, outweigh the public interest in having access to documents that could identify those persons.”).

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Q. Professional licensing records

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R. Public utility records

The Public Service Commission may “withhold from public inspection any information which would aid a competitor or a public utility in competition with the public utility.” Wis. Stat. § 196.14. In addition, administrative hearings, which include Public Service Commission hearings, may take steps to “protect the trade secrets.” Wis. Stat. § 227.46(7).

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S. Real estate appraisals, negotiations

The law has not addressed this issue directly; however, records of this nature may be closed if there is a competitive or bargaining need to do so. Cf. Wis. Stat. § 19.85(1)(e), § 19.35(1)(a).

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1. Appraisals

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2. Negotiations

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3. Transactions

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4. Deeds, liens, foreclosures, title history

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5. Zoning records

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T. School and university records

University application records are public after student identifying information is removed. Osborn v. Bd. of Regents, 2002 WI 83, 254 Wis. 2d 266, 647 N.W.2d 158.

Elementary and secondary student records are confidential except that directory data which may include the pupil’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, photographs, degrees and awards received may be made available to public inspection if the parent, legal guardian or guardian ad litem has been informed that the aforesaid information has been defined as directory data and may be released unless the parent, legal guardian or guardian ad litem objects. Wis. Stat. § 118.125(2)(j). The same protections are extended to students of institutions of higher learning which receive federal funds by 20 U.S.C. § 1232(2)(g). But neither the federal law nor the public policy underlying Wis. Stat. § 118.125(2)(j) preclude disclosure of university admission records from which all personally identifying information has been redacted. Osborn v. Bd. of Regents, 2002 WI 83, ¶¶ 31, 40, 254 Wis. 2d 266, 293, 298, 647 N.W.2d 158, 171, 174. Further, parents’ names and addresses are not student records, and are therefore subject to disclosure notwithstanding Wis. Stat. § 118.125(2)(j). See Hathaway v. Joint Sch. Dist., 116 Wis. 2d 388, 342 N.W.2d 682 (1984). Library circulation records are not subject to inspection. Wis. Stat. § 43.30(1).

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1. Athletic records

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2. Trustee records

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3. Student records

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

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U. State guard records

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V. Tax records

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W. Vital Statistics

Absent court order, only a “person with a direct and tangible interest in a vital record” is entitled to full disclosure, or a certified copy, of vital records. Wis. Stat. § 69.20(1).  Information in vital statistics are open to inspection, but not copying, under the general open records balancing test, with certain exceptions:

69. Information which is collected for statistical purposes only may not be disclosed, except to the subject of the information. Wis. Stat. § 69.20(2)(a).
70. Information concerning the birth of babies to mothers who were at any time between conception and delivery not married, Wis. Stat. § 69.20(2)(b), subject to very narrow exceptions. Wis. Stat. § 69.20(1).
71. Certified copies are limited to persons with a direct and tangible interest in the record. Wis. Stat. § 69.21(1)(a)(2)(a). Subject to the exceptions stated in 1., any person may obtain an uncertified copy. Wis. Stat. § 69.21(2).
72. Reports of induced abortions are to be kept anonymous and may not reveal the identity of any patient or health care provider. Wis. Stat. § 69.186(2).

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1. Birth certificates

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2. Marriage and divorce

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3. Death certificates

Beginning on September 1, 2013, publicly available death records do not contain information on final disposition and cause of death, or injury-related data. Wis. Stat. § 69.18(1m).

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4. Infectious disease and health epidemics

Wisconsin has not addressed these records.

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

Each authority is required to designate one or more custodians and to post prominently at its offices a notice containing a description of its organization and the times and places at which, the legal custodian from whom, and the methods whereby, the public may obtain information and access to records. Wis. Stat. § 19.34(1).

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2. Does the law cover oral requests?

Prior arrangements are required only if the custodian does not maintain regular office hours at the location where the records are kept. Wis. Stat. § 19.34(2)(b).
Custodians must respond to oral requests. Wis. Stat. § 19.35(1)(h). Custodians may orally deny an oral request, unless the requester demands a written statement of reasons within 5 business days of the oral denial. Wis. Stat. § 19.35(4)(b).
No action to enforce access may be commenced unless the request was made in writing. Wis. Stat. § 19.35(1)(h).

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3. Required contents of a written request

The request must reasonably describe the requested record or the information requested and must be reasonably limited in subject matter and length of time covered by the record. Wis. Stat. § 19.35(1)(h). There is no requirement of any “magic words” in a records request, and a custodian may not ignore a request because it is mistakenly termed a “FOIA” request. ECO Inc. v. City of Elkhorn, 2002 WI App 302, ¶ 22, 259 Wis. 2d 276, 292, 655 N.W.2d 510, 517–18.

The requester is not required to tender fees until required by the custodian, who may ask for fees in advance only when the total fee will exceed $5.00. Wis. Stat. § 19.35(3)(f). There is no advantage to tendering fees until asked.

The requester may wish to remind the custodian of the duty to produce records “as soon as practicable and without delay.” Wis. Stat § 19.35(4). A realistic specification of a time to respond is also useful as a predicate to suit.

The statute makes no provision for requests for records which are not in existence at the time they are requested. 73 Wis. Op. Att’y Gen. 38 (Feb. 28, 1984).

Requesters are not required to identify themselves or state their purpose unless the record is kept at a private residence or security or federal law or regulations so require. Wis. Stat. § 19.35(1)(i).

Requests may be made by mail and the custodian is required to provide a copy in that case. Wis. Stat. § 19.35(1)(b), (i). This statutory provision overrules Coalition for a Clean Gov’t v. Larsen, 166 Wis. 2d 159, 479 N.W.2d 576 (Wis. Ct. App. 1991). If the requester appears in person, the authority has the option of producing a copy or requiring the requester to make the requester’s own copy.

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4. Can the requester choose a format for receiving records?

Generally speaking, a requester has the right, with respect to any “record which is not in a readily comprehensible form,” to receive a copy of the information “assembled and reduced to written form on paper.” Wis. Stat. § 19.35(1)(e); see also State ex rel. Milwaukee Police Ass'n v. Jones, 237 Wis. 2d 840, 852, 615 N.W.2d 190, 196 (Wis. Ct. App. 2000) (holding that police department must make digital audio tape of 911 call available for inspection and copying, and that provision of analog tape alone is not sufficient compliance with request). A requester is entitled to copies of emails in electronic form. Lueders v. Krug, 2019 WI App 36, 388 Wis. 2d 147, 931 N.W.2d 898.

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5. Availability of expedited processing

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B. How long to wait

Records must be produced by the authority “as soon as practicable and without delay.” Wis. Stat. § 19.35(4)(a). Delay is not necessarily the equivalent of a denial, but any delay in granting access may become the basis for the institution of a suit to obtain access. Wis. Stat. § 19.37(1). On the other hand, a response declaring that the requested records will not be produced until some uncertain date in the future will be treated as a denial. WTMJ Inc. v. Sullivan, 204 Wis. 2d 452, 555 N.W.2d 140 (Wis. Ct. App. 1996). The Supreme Court ruled in WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ¶ 59, 310 Wis. 2d 397, 433, 751 N.W.2d 736, 753, that the enforcement action was commenced prematurely “because the municipalities had not denied WIREdata’s requests for the records before WIREdata filed the mandamus action.”

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1. Statutory, regulatory or court-set time limits for agency response

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2. Informal telephone inquiry as to status

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3. Is delay recognized as a denial for appeal purposes?

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4. Any other recourse to encourage a response

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C. Administrative appeal

Administrative appeals are not available. Cf. State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 595, 547 N.W.2d 587, 592 (1996) (records requesters need not give notice or opportunity for review to public entity before commencing an action under the Open Records law). An informal “administrative” appeal may be taken to the state attorney general who is specifically authorized to respond to any request for advice as to the applicability of the Open Records Law to any specific set of circumstances. Wis. Stat. § 19.39. Generally, custodians comply with that advice.

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1. Time limit to file an appeal

A requester has at least 3 years after a request is denied to file a mandamus action challenging the denial. Wis. Stat. § 893.93 (1m). In general, parties have 90 days (45 if a notice of entry is given) to appeal a final order or judgment of a circuit court. Wis. Stat. § 808.04(1). When an authority provides notice to a record subject under Wis. Stat. § 19.356, however, the subject has 10 days from receipt of the notice to “appeal” the authority’s decision to release records. Wis. Stat. § 19.356(4).

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2. To whom is an appeal directed?

“Appeals” of an authority’s decision concerning a records request are filed in the local county circuit court. Appeals of circuit court decisions are filed in the Wisconsin Court of Appeals.

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3. Fee issues

If a requester prevails “in whole or in substantial part” in a mandamus action seeking access to a record, the requester is entitled to recover from the authority his or her attorney fees and costs. Wis. Stat. § 19.37(2); see Journal Times v. City of Racine Bd. of Police & Fire Comm’rs, 2015 WI 56, 362 Wis. 2d 577, 866 N.W.2d 563 (discussion of what constitutes “substantial part”).

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4. Contents of appeal

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5. Waiting for a response

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6. Subsequent remedies

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D. Additional dispute resolution procedures

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1. Attorney General

“Any person can request advice from the attorney general as to the applicability of [the records act] under any circumstances.” Wis. Stat. § 19.39. The attorney general has enforcement authority under Wis. Stat. § 19.37(1)(b), along with the district attorney for the county where the record is found, upon written request by the requester. However, this authority is rarely exercised because the Open Records law authorizes requesters to bring their own enforcement actions under Wis. Stat. § 19.37(1)(a) and recover damages, reasonable attorney’s fees and actual costs if they prevail in whole or in substantial part under Wis. Stat. § 19.37(2)(a).

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2. Ombudsperson

Wisconsin has no ombudsman process for resolving open records disputes.

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3. Other

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E. Court action

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1. Who may sue?

The sole means for enforcing a request for inspection of a public record is an action for mandamus maintained by the requester, the district attorney or the attorney general. Wis. Stat. § 19.37(1). The subject of a record may sue to block release of the record. Wis. Stat. § 19.356.

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2. Priority

Under Wisconsin civil procedure a court may shorten the time to respond to mandamus. Wis. Stat. § 801.02(5).

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3. Pro se

Because of the basically common-law nature of access to records in Wisconsin, pro se procedures are definitely not recommended since few lay persons understand how to locate and apply court-made law. If the individual desiring access is unable to afford an attorney, the local district attorney or the attorney general may be persuaded to appear on behalf of the requester. Wis. Stat. § 19.37(1)(b).

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4. Issues the court will address

The court may rule on whether or not:

1. the record should or should not be produced for inspection;
2. the fees charged were proper or excessive;
3. any delay was excessive.

There is no specific provision in the Open Records Law for declaratory relief.

In deciding an Open Records case, the court is not limited to the evidence that was before the records custodian at the time of his or her decision. See Kailin v. Rainwater, 226 Wis. 2d 134, 146, 593 N.W.2d 865, 870 (Wis. Ct. App. 1999) (“Because of the de novo determination of the question of law involved, the trial court may consider all relevant and material information brought to its attention by the parties, even in a trial, regardless of whether that information was before the records custodian.”).

The court may permit the requesting party to access the record under restrictive orders for the purpose of arguing the case if the court deems that appropriate. Wis. Stat. § 19.37(1)(a). Either the grant or denial of access is not an abuse of discretion. Milwaukee Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Wis. Ct. App. 1989); Appleton Post-Crescent v. Janssen, 149 Wis. 2d 294, 441 N.W.2d 255 (Wis. Ct. App. 1989). Vaughn indices have not been required or used in Wisconsin practice.

The subject of a record is not a necessary party to enforcement proceedings, Wis. State Journal v. Univ. of Wis.-Platteville, 160 Wis. 2d 31, 465 N.W.2d 266 (Wis. Ct. App. 1990), but ordinarily has a right to intervene, Armada Broad., Inc. v. Stirn, 183 Wis. 2d 463, 516 N.W.2d 357 (1994).

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a. Denial

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b. Fees for records

An authority only may charge the “actual, necessary and direct cost of reproduction . . . .” Wis. Stat. § 19.35(3). A requester can challenge the fees on mandamus.

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c. Delays

A court can order the release of records based on a delay. Wis. Stat. § 19.37(1).

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d. Patterns for future access (declaratory judgment)

There is no specific provision in the Open Records Law for declaratory relief.

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5. Pleading format

The requester may proceed by a petition for alternative writ of mandamus or by summons and complaint, often accompanied by a motion to shorten time for answer since the records custodian has already considered and denied access to the requested records and may not add to the justifications set forth in the denial letter. See Wis. Stat. § 801.02(5); Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179, 184 (1979).

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6. Time limit for filing suit

There is no time limit for filing suit in the Open Records Law. The 3 year statute of limitations in Wis. Stat. § 893.93(1m) for liability under a statute may apply.

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7. What court?

The action should be filed in the circuit court for the county in which the custodian has his or her office.

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8. Burden of proof

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9. Judicial remedies available

The primary remedy is an order to release the record. Wis. Stat. § 19.37(1). The court also “shall” award damages of at least $100. Wis. Stat. § 19.37(2).

 

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10. Litigation expenses

If the requester prevails in whole or in substantial part, the court shall in addition award reasonable attorney fees and other actual costs to the plaintiff. Wis. Stat. § 19.37(2); WTMJ Inc. v. Sullivan, 204 Wis. 2d 452, 458, 555 N.W.2d 140, 143 (Wis. Ct. App. 1996). But where the party is an attorney who represents him or herself no fees may be awarded. State ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Wis. Ct. App. 1991).

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a. Attorney fees

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b. Court and litigation costs

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11. Fines

An authority or legal custodian who arbitrarily and capriciously denies or delays the response or charges excessive fees may be required to forfeit not more than $1,000, in an action brought by the attorney general or a district attorney. Wis. Stat. § 19.37(4).

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12. Other penalties

If the court finds that an authority or custodian has “arbitrarily and capriciously denied or delayed response to a request or charged excessive fees, the court may award punitive damages to the requester.” Wis. Stat. § 19.37(3).

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13. Settlement, pros and cons

Once access cases reach the stage of court action, they are rarely settled, although claims for attorney’s fees are sometimes compromised.

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F. Appealing initial court decisions

Judicial review on appeal is de novo in the sense that “the trial judge should then make his determination of whether or not the harm likely to result to the public interest by permitting the inspection outweighs the benefit to be gained by granting inspection.” State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 682, 137 N.W.2d 470, 475 (1965), modified on reh’g, 139 N.W.2d 241 (1966).

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1. Appeal routes

Appeal is to the Wisconsin Court of Appeals. Wis. Stat. § 808.03(1).

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2. Time limits for filing appeals

The time to appeal is 45 days from the entry of judgment if a written notice of entry is given within 25 days of entry or within 90 days of entry if no notice is given. Wis. Stat. § 808.04(1).

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3. Contact of interested amici

Briefs of amici may be filed if a motion is filed within 14 days after the respondent’s brief is filed, i.e., within 80 days after the record is filed in the appellate court. Wis. Stat. § 809.19(7). The brief need not be filed with the request and may be filed thereafter within the time specified by the court if the request to file a brief of amicus curiae is granted.

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G. Addressing government suits against disclosure

Wisconsin has not addressed this issue.

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

An “open session” of a public body “means a meeting which is held in a place reasonably accessible to members of the public and open to all citizens at all times.” Wis. Stat. § 19.82(3). The open meetings law may be enforced upon “the verified complaint of any person.” Wis. Stat. § 19.97(1).

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B. What governments are subject to the law?

“‘Governmental body’ means a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a local exposition district . . . ; a family care district . . . ; a nonprofit corporation operating the Olympic ice training center . . . ; or a formally constituted subunit of any of the foregoing; but excludes any such body or committee or subunit which is formed for or meeting for the purpose of collective bargaining.” Wis. Stat. § 19.82(1).

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1. State

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2. County

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3. Local or municipal

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C. What bodies are covered by the law?

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1. Executive branch agencies

Executive officials are covered to the extent they participate in a “meeting” (see I.D., below) of a “governmental body.” Chief executive officers of governmental bodies are typically not covered unless they are members of some multi-member board, commission, committee, etc. Thus, executive functions which can be conducted by a single individual are not covered. State ex rel. Plourde v. Habhegger, 2006 WI App 147, ¶ 12, 294 Wis. 2d 746, 752, 720 N.W.2d 130, 133 (“We conclude the open meetings law is not meant to apply to single-member government bodies”).

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a. What officials are covered?

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b. Are certain executive functions covered?

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c. Are only certain agencies subject to the act?

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2. Legislative bodies

“This subchapter shall apply to all meetings of the Senate and Assembly and the committees, subcommittees, and other subunits thereof, except” scheduling, other meetings exempted by legislative rule and caucuses. Wis. Stat. § 19.87.

Despite this explicit statement of legislative intent, however, the first attempt to enforce the open meetings law against a joint legislative committee failed, more than 35 years after the open meetings law was adopted. The Wisconsin Supreme Court ruled in State ex rel. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436, that separation of powers principles preclude judicial review of the legislature’s compliance with its own rules of procedure concerning passage of legislation, whether those rules are internal or statutory. To do so, a sharply divided court ruled, would invade the constitutional power of the legislature to declare what shall become law. Barring an amendment of the state constitution, therefore, the open meetings law cannot be applied to legislative bodies, though they tend to comply with the law.

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3. Courts

“The sittings of every court shall be public and every citizen may freely attend the same.” Wis. Stat. § 757.14. However, the Open Meetings Law does not apply to judicial agencies. State ex rel. Lynch v. Dancey, 71 Wis. 2d 287, 238 N.W.2d 81 (1976).

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4. Nongovernmental bodies receiving public funds or benefits

The meetings of “quasi-governmental corporations” and corporations created by governmental action are open. Wis. Stat. § 19.82(1).

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5. Nongovernmental groups whose members include governmental officials

Non-governmental groups are not covered per se.

Non-governmental bodies may be subjected to the requirements of the open meetings law by contract. State ex rel. Journal/Sentinel Inc. v. Pleva, 155 Wis. 2d 704, 456 N.W.2d 359 (1990).

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6. Multi-state or regional bodies

“All meetings of the [Midwest Interstate Low Level Radioactive Waste] commission shall be open to the public with reasonable advance notice. The commission may, by majority vote, close a meeting to the public for the purpose of considering sensitive personnel or legal strategy matters.” Wis. Stat. § 16.11(3)(e).

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7. Advisory boards and commissions, quasi-governmental entities

Advisory Boards and commissions are covered if they are created by official action. Wis. Stat. § 19.82(1); Outagamie Cty. v. Smith, 38 Wis. 2d 24, 155 N.W.2d 639 (1968). “Quasi-governmental corporations” need not be created by government for the open meetings law to apply. A private corporation that significantly resembles a governmental corporation in function, effect or status, is covered. State v. Beaver Dam Area Dev. Corp., 2008 WI 90, ¶¶ 33–36, 312 Wis. 2d 84, 98–100, 752 N.W.2d 295, 301–02 (economic development corporation that serves only the city is a quasi-governmental corporation). The non-exhaustive list of factors to be considered in making this determination includes: (1) the extent to which the private corporation is supported by public funds; (2) whether the private corporation serves a public function and, if so, whether it also has other, private functions; (3) whether the private corporation appears in its public presentations to be a governmental entity; (4) the extent to which the private corporation is subject to governmental control; and (5) the degree of access that government bodies have to the private corporation’s records. Id., ¶ 62.

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8. Other bodies to which governmental or public functions are delegated

These bodies are likewise covered if they are created by official action. Wis. Stat. § 19.82(1); Outagamie Cty. v. Smith, 38 Wis. 2d 24, 155 N.W.2d 639 (1968); State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., 2017 WI 70, 376 Wis. 2d 239, 898 N.W.2d 35 (ad hoc committee of school board was subject to open meetings law).

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9. Appointed as well as elected bodies

The definition of “governmental bodies” includes both elected and appointed bodies. See Wis. Stat. § 19.82(1).

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D. What constitutes a meeting subject to the law

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1. Number that must be present

“Meeting” means the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. If one-half or more of the members of a governmental body are present, the meeting is rebuttably presumed to be for that purpose. The statutory term “meeting” does not include any social or chance gathering or conference which is not intended to avoid the Open Meetings law. Wis. Stat. § 19.82(2). Thus, only multi-member, formally constituted groups of public officials are covered. A meeting at which a negative quorum is present (i.e., sufficient members of the governmental body to block action on the subject under consideration) and which is for the purpose of exercising responsibilities, authority, power or duties of the governmental body, is required to be open. State ex rel. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 398 N.W.2d 154 (1987).

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a. Must a minimum number be present to constitute a "meeting"?

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b. What effect does absence of a quorum have?

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2. Nature of business subject to the law

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a. "Information gathering" and "fact-finding" sessions

Gatherings for the purpose of obtaining information with a view toward future action are meetings. State ex rel. Hodge v. Village of Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993); State v. Swanson, 92 Wis. 2d 310, 284 N.W.2d 655 (1979).

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b. Deliberation toward decisions

“[W]henever members of a governmental body meet to engage in government business, be it discussion, decision or information gathering, the Open Meeting Law applies . . . .” Showers, 135 Wis. 2d at 80, 398 N.W.2d at 156.

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3. Electronic meetings

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a. Conference calls and video/Internet conferencing

Conference calls involving members of a governmental body are considered meetings. Therefore, such calls must reasonably be accessible to the public and notice must be provided. See 69 Op. Att’y Gen. 143; Wis. Stat. § 19.82. “Any meeting conducted via a telephone conference call is subject to all the provisions of the open meetings law, secs. 19.81–19.89, Stats., including the public notice requirements under sec. 19.84, Stats.” 69 Op. Att’y Gen. Wis. 143.

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b. E-mail

“The widespread use of electronic mail and other electronic message technologies creates special dangers for governmental officials trying to comply with the open meetings law. Although two members of a governmental body larger than four members may discuss the body’s business without violating the open meetings law, features like ‘forward’ and ‘reply to all’ common in electronic mail programs deprive a sender of control over the number and identity of the recipients who eventually may have access to the sender’s message. Moreover, because of electronic mail communication, it is quite possible that a quorum of a governmental body may receive the sender’s message — and therefore may receive information on a subject within the body’s jurisdiction — in an almost real-time basis, the way they would receive it in a meeting of the body. Although no Wisconsin court has applied the open meetings law to electronic mail communications, it is likely that the courts will try to determine whether electronic communication is more like written correspondence which does not raise open meetings law concerns, or more like conversation, which does raise those concerns. Courts are likely to consider the following factors: (1) the number of participants involved in the communication; (2) the number of communications regarding the subject; (3) a time frame within which the electronic communications occurred; and (4) the extent of the conversation-like interactions reflected in the communications. Inadvertent violations of the open meetings law through the use of electronic communications can be reduced if electronic mail is used principally to transmit information one-way to a body’s membership; if the originator of the message reminds recipients to reply only to the originator, if at all; and if message recipients are scrupulous about minimizing the content and distribution of their replies.” 2005 Wisc. AG LEXIS 29, 2–4 (Wisc. AG 2005).

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c. Text messages

Wisconsin has not addressed this issue.

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d. Instant messaging

Wisconsin has not addressed this issue.

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e. Social media and online discussion boards

Wisconsin has not addressed this issue.

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E. Categories of meetings subject to the law

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1. Regular meetings

“[W]henever members of a governmental body meet to engage in government business, be it discussion, decision or information gathering, the Open Meeting Law applies . . . .” Showers, 135 Wis. 2d at 80, 398 N.W.2d at 156.

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a. Definition

“Meeting” means the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. If one-half or more of the members of a governmental body are present, the meeting is rebuttably presumed to be for that purpose. The statutory term “meeting” does not include any social or chance gathering or conference which is not intended to avoid the Open Meetings law. Wis. Stat. § 19.82(2).

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b. Notice

“Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.” Wis. Stat. § 19.84(3).

“Public notice of all meetings of a governmental body shall be given in the following manner: . . . . (b) By communication from the chief presiding officer of a governmental body or such person’s designee to the public, to those news media who have filed a written request for such notice, and to the official newspaper . . . or, if none exists, to a news medium likely to give notice in the area. Communication from the chief presiding officer of a governmental body or such person’s designee shall be made to the public using one of the following methods: 1. Posting a notice in at least 3 public places likely to give notice to persons affected. 2. Posting a notice in at least one public place likely to give notice to persons affected and placing a notice electronically on the governmental body’s Internet site.3. By paid publication in a news medium likely to give notice to persons affected.” Wis. Stat. § 19.84(1). When a meeting is held to take final action on the dismissal of a public employee, or to conduct an evidentiary hearing on a dismissal, the body must provide actual notice to the employee involved. Wis. Stat. § 19.85(1)(b). No such actual notice is required if the body does no more than discuss a possible dismissal. See State ex rel. Epping v. City of Neillsville Common Council, 218 Wis. 2d 516, 521, 581 N.W.2d 548, 551(Wis. Ct. App. 1998) (“Thus, if no evidentiary hearing or final action took place during the closed sessions, Epping was not entitled to actual notice of the meetings.”). But see Campana v. City of Greenfield, 38 F. Supp. 2d 1043 (E.D. Wis. 1999) (where mayor made specific accusations against treasurer, brought 30 documents allegedly supporting accusations, and provided testimony, meeting was an “evidentiary hearing” requiring actual notice to treasurer).

“Every public notice of a meeting of a governmental body shall set forth the . . . subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof.” Wis. Stat. § 19.84(2). General subject matters such as “new matters” or “citizens and delegations” are not sufficiently specific. 66 Op. Att’y Gen. 143, 195 (April 18, 1977). A notice specifically declaring that the body will consider a resolution approving an identified plan is not rendered deficient under the statute by a “boilerplate” disclaimer stating that the body “will not take any formal action at this meeting.” State ex rel. Olson v. City of Baraboo, 2002 WI App 64, ¶ 15, 252 Wis. 2d 628, 638, 643 N.W.2d 796, 801 (section 19.84(2) “does not expressly require that the notice indicate whether a meeting will be purely deliberative or if action will be taken”). Although such a notice “creates some ambiguity,” the court held that it “contains enough information to alert any interested individual who might have been confused by the notice to find out more.” Id., ¶ 17, 252 Wis. 2d at 639, 643 N.W.2d at 801.

With respect to the subject matter notice requirement, the Wisconsin Supreme Court determined that “the plain meaning of Wis. Stat. § 19.84(2) sets forth a reasonableness standard, and that such a standard strikes the proper balance contemplated in Wis. Stat. §§ 19.81(1) and (4) between the public’s right to information and the government’s need to efficiently conduct its business.” State ex rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71, ¶ 3, 301 Wis. 2d 178, 187, 732 N.W.2d 804, 809.  Factors to be considered in making this determination include: “The burden of providing more detailed notice, whether the subject is of particular public interest, and whether it involves non-routine action that the public would be unlikely to anticipate.” Id., ¶ 28. The determination must be made on a case-by-case basis, bearing in mind that “the demands of specificity should not thwart the efficient administration of governmental business.” Id., ¶ 29.

The meeting notice must also include “the time, date, place . . . of the meeting . . . in such form as is reasonably likely to apprise members of the public and the news media thereof.” Wis. Stat. § 19.84(2). When a quorum of a parent body plans to attend a meeting of a subcommittee or other subordinate body, notice of the meeting of the parent body must be given in addition to the notice of the subcommittee’s (or other subordinate body’s) meeting. State ex re. Badke v. Village Bd. of Greendale, 173 Wis. 2d 553, 494 N.W.2d 408 (1993).

See IV.C. 8 and 10 below for the penalties. Attending a meeting with knowledge that proper notice has not been given is a violation of the Open Meetings Law. State v. Swanson, 92 Wis. 2d 310, 284 N.W.2d 655 (1979).

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c. Minutes

“The motions and roll call votes of each meeting of a governmental body shall be recorded, preserved and open to public inspection to the extent prescribed in [the Open Records Law].” Wis. Stat. § 19.88(3). Secret ballots may not be used except for the election of officers of the body. Wis. Stat. § 19.88(1).

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2. Special or emergency meetings

No specific provisions for notice of special or emergency meetings. However, the requirement to provide notice “at least 24 hours prior” to a meeting does not apply whenever “for good cause such notice is impossible or impractical, in which case shorter notice may be given but in no case may the notice be provided less than 2 hours in advance of the meeting.” Wis. Stat. § 19.84(3).

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a. Definition

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b. Notice requirements

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c. Minutes

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3. Closed meetings or executive sessions

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a. Definition

Any meeting which is not an “open session” is closed. “Open session means a meeting which is held in a place reasonably accessible to members of the public and open to all citizens at all times.” Wis. Stat. § 19.82(3).

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b. Notice requirements

The notice and agenda requirements for a closed meeting are the same as those for an open meeting. See E.1.b., above. However, “[n]o governmental body may commence a meeting, subsequently convene in closed session and thereafter reconvene again in open session within 12 hours after completion of the closed session, unless public notice of such subsequent open session was given at the same time and in the same manner as the public notice of the meeting convened prior to the closed session.” Wis. Stat. § 19.85(2).

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c. Minutes

“The motions and roll call votes of each meeting of a governmental body shall be recorded, preserved and open to public inspection to the extent prescribed in [the Open Records Law].” Wis. Stat. § 19.88(3). Secret ballots may not be used except for the election of officers of the body. Wis. Stat. § 19.88(1).

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d. Requirement to meet in public before closing meeting

Any meeting of a governmental body, upon motion duly made and carried [in open session], may be convened in closed session under one or more of the exemptions provided in this section. Wis. Stat. § 19.85(1).

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e. Requirement to state statutory authority for closing meetings before closure

“No motion to convene in closed session may be adopted unless the chief presiding officer announces to those present at the meeting at which such motion is made, the nature of the business to be considered at such closed session, and the specific exemption or exemptions under this subsection by which such closed session is claimed to be authorized. Such announcement shall become part of the record of the meeting. No business may be taken up at any closed session except that which relates to matters contained in the chief presiding officer’s announcement of the closed session.” Wis. Stat. § 19.85(1).

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f. Tape recording requirements

There is no requirement to record closed sessions.

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F. Recording/broadcast of meetings

“Whenever a governmental body holds a meeting in open session, the body shall make a reasonable effort to accommodate any person desiring to record, film or photograph the meeting.” Wis. Stat. § 19.90.

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1. Sound recordings allowed

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2. Photographic recordings allowed

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G. Access to meeting materials, reports and agendas

Meeting materials are subject to the Open Records Law. See, e.g., Wis. Stat. § 19.88(3).

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H. Are there sanctions for noncompliance?

For violations of the open meetings law, violators are fined between $25 and $300 for each violation. Wis. Stat. § 19.96. Violators may avoid the fine by voting to keep the meeting open. Wis. Stat. § 19.96. A court may void any action taken at an improperly closed meeting. Wis. Stat. § 19.97(3). For violations not prosecuted by the state or district attorney, who have the primary responsibility to enforce the open meetings law, private parties may recover attorney fees. Wis. Stat. § 19.97(4).

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II. Exemptions and other legal limitations

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A. Exemptions in the open meetings statute

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1. Character of exemptions

In contrast to the Open Records Law, exemptions to the Open Meetings Law are specific. Unless a meeting falls within one of the specific categories of exemption, it may not be closed. Wis. Stat. § 19.85(1). The exemptions are narrowly construed. Cf. Chvala v. Bubolz, 204 Wis. 2d 82, 552 N.W.2d 892 (Wis. Ct. App. 1996) (exemptions to the Open Records law are to be construed narrowly). Closure is discretionary. State ex rel. Bilder v. Delavan Twp., 112 Wis. 2d 539, 334 N.W.2d 252 (1983).

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2. Description of each exemption

The statutory grounds upon which meetings may be closed are (a) deliberating following a judicial or quasi-judicial trial or hearing; (b) considering negative action against an employee or licensee of the state or an investigation of same; (c) considering employment, promotion, compensation or performance evaluation data of a public employee (but not elected officials; see 76 Op. Att’y Gen. 276 (Nov. 6, 1987); (d) considering applications for probation or parole or strategies for crime detection or prevention; (e) deliberating or negotiating concerning specified public business whenever competitive or bargaining reasons require; (ee) deliberating by the council on unemployment insurance in a meeting at which all employer members of the council or all employee members of the council are excluded; (eg) deliberating by the council on worker’s compensation in a meeting at which all employer members of the council or all employee members of the council are excluded; (em) deliberating for the relocation of a burial site; (f) considering financial, medical, social or personal histories or disciplinary data, preliminary consideration of specific personnel problems or the investigation of charges against specific persons, if such discussion would be likely to have a substantial adverse effect upon the reputation of the person referred to; and (g) conferring with counsel concerning actual or likely litigation.Wis. Stat. § 19.85(1).

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B. Any other statutory requirements for closed or open meetings

The following meetings are open: Wis. Stat. §§ 36.07(6) (University of Wisconsin Regents); Wis. Stat. § 59.11(4) (County Boards); Wis. Stat. § 59.70(12)(b) (Mosquito Control Districts); Wis. Stat. § 59.694(3) (Zoning Adjustment Boards); Wis. Stat. § 61.32 (Village Boards); Wis. Stat. § 62.11 (Common Councils of Cities); Wis. Stat. § 62.23(7)(e)(3) (City Board of Appeals); Wis. Stat. § 70.47(2m) (Board of [Tax Assessment] Review); Wis. Stat. § 73.01 (Tax Appeals Commission); Wis. Stat. § 227.18 (Administrative Rule Making Hearings); Wis. Stat. § 62.13(5)(d) (Police and Fire Commission Hearings); Wis. Stat. § 38.10(2) (Vocational, Technical, and Adult Education Appointment Committee); Wis. Stat. § 59.84(6) (County Budget Hearings); Wis. Stat. § 64.07(6) ([City] Common Council); Wis. Stat. § 65.04(7) (Board of [Budgetary] Estimates); Wis. Stat. § 66.2015(6) (Community Relations—Social Development Commission); Wis. Stat. § 111.70(4)(cm)(2) (Municipal Arbitration Proposals); Wis. Stat. § 114.136(2) (Airport Approach Protection Hearings); and Wis. Stat. § 231.02(3) (Wisconsin Health Facilities Authority).

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C. Court mandated opening, closing

There are no court-created or common-law exemptions to the requirements of the Open Meetings Law.

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

Rulemaking hearings are open. Wis. Stat. § 227.18(1).

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1. Deliberations closed, but not fact-finding

Deliberations of adjudications by administrative bodies are closed, but fact finding is open. Wis. Stat. § 19.85(1)(a). The exception for deliberations applies only to a “case” that is the subject of a quasi-judicial trial or hearing. State ex rel. Hodge v. Turtle Lake, 180 Wis. 2d 62, 72, 508 N.W.2d 603, 607 (1993) (the term “case” contemplates a controversy between adverse parties; the exception does not apply to deliberations on a permit application). Adjudicative administrative hearings conducted before a hearing examiner are not expressly required to be open to the public because the Open Meetings Law only applies to “governmental bodies” i.e., multimember bodies.

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2. Only certain adjudications closed, i.e. under certain statutes

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B. Budget sessions

City budget sessions are expressly open. Wis. Stat. §§ 64.07(6), 65.04(7). A similar requirement exists for the Milwaukee School Board’s budget hearing. Wis. Stat. § 119.16(8)(a). There is no express provision for closing other budget sessions.

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C. Business and industry relations

Meeting for the purpose of deliberating or negotiating the purchasing of public properties, the investing in public funds, or conducting other specified business may be closed whenever competitive or bargaining reasons require. Wis. Stat. § 19.85(1)(e); State ex rel. Citizens for Responsible Dev. v. City of Milton, 2007 WI App 114, 300 Wis. 2d 649, 731 N.W.2d 640 (the exception must be narrowly construed, authorizing closing only that part of a meeting in which negotiating strategy is discussed).

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D. Federal programs

Not exempted but could be closed under Wis. Stat. § 19.85(1)(e) (above) if a bargaining position would be compromised.

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E. Financial data of public bodies

Not exempted but could be closed under Wis. Stat. § 19.85(1)(e) (above) if for competitive or bargaining reasons

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Administrative hearing examiners may protect “trade secrets.” Wis. Stat. § 227.46(7). Personal financial data may be the subject of a closed meeting if its disclosure would have a “substantial adverse effect upon the reputation of any person.” Wis. Stat. § 19.85(1)(f).

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G. Gifts, trusts and honorary degrees

Not exempted.

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H. Grand jury testimony by public employees

Grand jury proceedings are secret. Cf. Wis. Stat. §§ 968.41, 968.45, 968.46, 968.51, 968.52. Likewise, the Wisconsin one-person grand jury known as a “John Doe” proceeding may, but need not, be secret. Wis. Stat. § 968.26; In re Wis. Family Counseling Servs. v. State, 95 Wis. 2d 670, 291 N.W.2d 631 (Wis. Ct. App. 1980).

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I. Licensing examinations

There is no exemption.

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J. Litigation, pending litigation or other attorney-client privileges

Meetings for purpose of conferring with counsel on the subject of pending or likely litigation may be closed. Wis. Stat. § 19.85(l)(g).

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K. Negotiations and collective bargaining of public employees

Everything related to collective bargaining, except the approval of the contract, may be closed because a “meeting for the purpose of collective bargaining” is not a “meeting” as defined in Wis. Stat. § 19.82(1). See Wis. Stat. § 19.85(3); see also Bd. of Sch. Dirs. v. Wis. Emp’t Relations Comm’n, 42 Wis. 2d 637, 168 N.W.2d 92 (1969). Once a public body has reached a tentative agreement with a bargaining unit, the body must conduct its vote on approval of that tentative agreement, as well as the discussions and deliberations leading to a vote, in open session. 81 Wis. Op. Att’y Gen. 139 (June 10, 1994).

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1. Any sessions regarding collective bargaining

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2. Only those between the public employees and the public body

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L. Parole board meetings, or meetings involving parole board decisions

Parole board meetings are closed. Wis. Stat. § 19.85(1)(d).

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M. Patients, discussions on individual patients

Discussions of patients and their records are exempt only if likely to have substantial adverse effect upon the reputation of the person referred to. Wis. Stat. § 19.85(1)(f).

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N. Personnel matters

Hiring interviews may be closed. Wis. Stat. § 19.85(1)(c). Disciplinary matters may be closed. Wis. Stat. § 19.85(1)(b). Ethics advice may be closed. Wis. Stat. § 19.85(1)(h). A disciplined employee has no right, however, to have the actual vote on the disciplinary action taken in closed session. State ex rel. Schaeve v. Van Lare, 125 Wis. 2d 40, 370 N.W.2d 271 (Wis. Ct. App.). But discussions of positions, as opposed to individual employees, must be open. 80 Wis. Op. Att’y Gen. 176 (Feb. 25, 1992).

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1. Interviews for public employment

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2. Disciplinary matters, performance or ethics of public employees

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3. Dismissal, considering dismissal of public employees

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O. Real estate negotiations

Real estate negotiations may be closed “whenever competitive or bargaining reasons require.” Wis. Stat. § 19.85(1)(e); see State ex rel. Citizens for Responsible Dev. v. City of Milton, 2007 WI App 114, 300 Wis. 2d 649, 731 N.W.2d 640 (the exception must be narrowly construed, authorizing closing only that part of a meeting in which negotiating strategy is discussed).

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P. Security, national and/or state, of buildings, personnel or other

These matters are not addressed by the Open Meetings Law.

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Q. Students, discussions on individual students

Meetings discussing individual students may be closed if the discussion involved personal histories or disciplinary data or preliminary investigation of charges “if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person.” Wis. Stat. § 19.85(1)(f).

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IV. Procedure for asserting right of access

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A. When to challenge

Wisconsin’s Open Meetings Law, in contrast to its Open Records Law, is basically intended to be enforced by an action for penalties after the violation, brought by the attorney general, the local district attorney, or a private citizen. There are no pre-meeting procedures for the assertion or preservation of rights by persons who wish to attend. Wis. Stat. § 19.97; see also State ex rel. Auchinleck v. Town of La Grange, 200 Wis. 2d 585, 595, 547 N.W.2d 587, 591 (1996) (claimant under the Open Meetings Law is not required to comply with 120-day-notice-of-claim requirement contained in state tort claims act). However, a request for declaratory relief, mandamus or an injunction may be made before, as well as after, a meeting.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The law does not provide any expedited procedure or address the issue specifically.

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2. When barred from attending

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3. To set aside decision

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4. For ruling on future meetings

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5. Other

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B. How to start

If a person is aggrieved by threatened or actual exclusion from a meeting, an initial request in the form of a verified complaint must be made to the attorney general or the local district attorney to commence an action for penalties, declaratory judgment, mandamus or injunctive relief as appropriate. Wis. Stat. § 19.97(1) and (2).

In the event the district attorney fails to act within 20 days, the person complaining may bring an action on his or her relation in the name, and on behalf of, the state. Wis. Stat. § 19.97(4). In so doing, the person acts as a “private attorney general” and “stands in the shoes of the state enforcing not only her own right, but also, the rights of the citizens of this state to open government.” State ex rel. Lawton v. Town of Barton, 2005 WI App 16, ¶ 15, 278 Wis. 2d 388, 398, 692 N.W.2d 304, 309.

The complaint should normally state the time and place of the meeting, the persons present who are members of the governmental body, the subject matter under discussion and the specific violation alleged, i.e., exclusion, secret ballot or the like.

After action is commenced, either by the attorney general, the district attorney, or the aggrieved party, the offending members of a governmental body have 20 days to answer the complaint.

There are no other provisions for subsequent or concurrent remedial measures. Trial court decisions may be appealed.

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1. Where to ask for ruling

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a. Administrative forum

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b. State attorney general

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c. Court

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2. Applicable time limits

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3. Contents of request for ruling

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4. How long should you wait for a response

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5. Are subsequent or concurrent measures (formal or informal) available?

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C. Court review of administrative decision

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1. Who may sue?

Only the attorney general or local district attorney may sue unless a complaint has been made to the district attorney and that attorney has refused to sue. Then, any person who requested action may proceed.

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2. Will the court give priority to the pleading?

There is no provision for docket priority.

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3. Pro se possibility, advisability

The initial complaint with the district attorney may be filed pro se, but a pro se suit is not advisable because the district attorney will normally pursue cases with clear merit, and an attorney is probably required for the complainant to have a chance of prevailing in doubtful cases. Governmental bodies rarely retreat on a closed meeting question unless threatened by the attorney general, a district attorney or a knowledgeable private attorney.

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4. What issues will the court address?

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a. Open the meeting

Except in rare cases, the action has been brought to determine whether the meeting should have been open, whether proper notice was given or proper procedure to close was followed in the statutory forfeiture. In rare cases, simple declaratory relief has been sought. See State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 239 N.W.2d 313 (1976).

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b. Invalidate the decision

The court may also invalidate the action taken at a meeting held in violation of the law if the court “finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken.” Wis. Stat. § 19.97(3).

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c. Order future meetings open

Declaratory and injunctive relief is available to require that future meetings be open. Wis. Stat. § 19.97(2). The fact that the primary governmental action affecting the person complaining about the Open Meetings violation is declared void, pursuant to § 19.97(3), does not render moot the claims for declaratory relief and civil forfeitures based on the same or related Open Meetings infractions. See State ex rel. Lawton v. Town of Barton, 2005 WI App 16, ¶¶ 15, 19, 278 Wis. 2d 388, 398, 400–01, 692 N.W.2d 304, 309, 311 (while voiding body’s action may grant complainant all the relief she seeks as an individual, it does not address the citizenry’s interests in declaring the legality of official actions and potentially imposing forfeitures on the officials responsible).

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5. Pleading format

The normal pleading format is an action for a civil forfeiture brought on the relation of the attorney general, district attorney or, where applicable, the person complaining. Wis. Stat. §§ 19.96, 19.97.

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6. Time limit for filing suit

The period of limitation is two years. Wis. Stat. § 893.93(2)(a).

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7. What court?

The circuit court for the county where the violation occurred has jurisdiction. Wis. Stat. § 893.93(2).

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8. Judicial remedies available

The remedies are forfeiture, mandamus, injunction or declaratory judgment. Wis. Stat. §§ 19.96 and 19.97(2).

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9. Availability of court costs and attorney's fees

When the district attorney (corporation counsel) has refused to sue, the prevailing party may receive “actual and necessary costs of prosecution, including reasonable attorney fees to the relator if he or she prevails.” Wis. Stat. § 19.97(4). Attorney’s fees are to be awarded if such an award would advance the purposes of the Open Meetings law of enhancing public access to information about the affairs of government, unless special circumstances would make such an award unjust. State ex rel. Hodge v. Town of Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993).

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10. Fines

The civil forfeiture is not less than $25 nor more than $300 per violation. Wis. Stat. § 19.96. These must be paid by the offending public officials who may not be reimbursed. Crawford v. City of Ashland, 134 Wis. 2d 369, 396 N.W.2d 781 (Wis. Ct. App. 1986).

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11. Other penalties

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D. Appealing initial court decisions

Judicial review on appeal is de novo in the sense that “the trial judge should then make his determination of whether or not the harm likely to result to the public interest by permitting the inspection outweighs the benefit to be gained by granting inspection.” State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 682, 137 N.W.2d 470, 475 (1965), modified on reh’g, 139 N.W.2d 241 (1966).

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1. Appeal routes

Appeal is to the court of appeals. Wis. Stat. § 808.03(1).

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2. Time limits for filing appeals

The time to appeal is 45 days from the entry of judgment if a written notice of entry is given within 25 days of entry or within 90 days of entry if no notice is given. Wis. Stat. § 808.04(1).

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3. Contact of interested amici

Amicus briefs may be filed if a request is filed within 14 days after the respondent’s brief is filed, i.e., within 80 days after the record is filed in the appellate court. Wis. Stat. § 809.19(7). The brief need not be filed with the request and may be filed thereafter within the time specified by the court if the request to file an amicus brief is granted.

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V. Asserting a right to comment

This issue is addressed in Wisconsin’s Administrative Procedure Act, Wis. Stat. §§ 227.01–227.60 (2003–04). Other specific statutes governing particular agencies and governmental bodies may have similar provisions. See, e.g., Wis. Stat. § 119.12(8)(a) (2003–04) (Milwaukee School Board must hold a public hearing before adopting an annual budget).

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A. Is there a right to participate in public meetings?

Under the Open Meetings Law, a governmental body is not required to permit public comment. However, “the public notice of a governmental body may provide for a period of public comment, during which the body may receive information from members of the public.” Wis. Stat. § 19.84(2). Members of the body may discuss, but not act on, matters raised by the public during the public comment period. Wis. Stat. § 19.83(2).

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B. Must a commenter give notice of intentions to comment?

Commenters do not have to give notice, but the government is not required to permit comment.

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C. Can a public body limit comment?

A public body may limit comment.

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D. How can a participant assert rights to comment?

This is not addressed in Wisconsin.

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E. Are there sanctions for unapproved comment?

This is not addressed in Wisconsin.

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Appendix

Accident Reports, Boating — Wis. Stat. § 30.67(4)
Accident Reports, Motor Vehicle — Wis. Stat. § 349.19
Accidents, public utility reports — Wis. Stat. § 196.72(1)(b)
Adoption, birth certificates — Wis. Stat. § 69.20(2)(a)
Adoptions — Wis. Stat. § 48.93
Air pollution permit data revealing trade secrets — Wis. Stat. § 285.70(2)
Alcoholism patients involuntary commitment hearings and records — Wis. Stat. § 51.45(13)(f), (14)
Antitrust investigation records revealing trade secrets — Wis. Stat. § 133.13(2)
Arbitration records, Farm Mediation & Arbitration Board — Wis. Stat. § 93.50(2)(e)
Arson Investigation, information furnished by an insurer — Wis. Stat. § 165.55(14)
Artificial insemination — Wis. Stat. § 891.40(1)
Banking — Wis. Stat. §§ 220.035(1)(d), 220.06
Beverage/tobacco income/gift tax returns — Wis. Stat. § 139.11(4)
Bidder’s proof of responsibility, municipal contracts — Wis. Stat. § 66.29(2)
Birth Control/Family Planning — Wis. Stat. § 253.07(3)(c)
Birth parent — Wis. Stat. § 48.432(4)(f) & (g)
Birth parent — Wis. Stat. § 48.433
Blood specimens — Wis. Stat. § 346.71(2)
Blood specimens — Wis. Stat. § 350.155(2)
Burial sites — Wis. Stat. § 157.70(2)
Campaign fund designation — Wis. Stat. § 71.10(3)
Cancer reporting — Wis. Stat. § 255.04
Cancer statistics — Wis. Stat. § 140.05(11)
Children’s Court Advisory Board records — Wis. Stat. § 48.11(2)
Children’s Records: Abused or neglected children — Wis. Stat. § 48.981(7), (9)(d) & (10)(a)1
Child Welfare agency records — Wis. Stat. § 48.78
Civil Service — Wis. Stat. § 230.13 (date) [see § 546 of] Act 225
Communicable Diseases — Wis. Stat. § 252.11(7)
Competency report and hearing — Wis. Stat. § 971.14(4)
Concealed carry records — Wis. Stat. § 175.60(12)(c)
Contractor’s payroll records — Wis. Stat. § 66.293(10)(c)
Controlled substances research — Wis. Stat. § 961.335
Credit Union — Wis. Stat. § 186.235(7)
CUB records — Wis. Stat. § 199.07(5)
Depositions in criminal proceedings — Wis. Stat. § 967.04(8)(a)
Disability Board proceedings — Wis. Stat. § 17.025(3)(b)
Discovery in Juvenile matters — Wis. Stat. § 48.293(2)
Elder abuse records — Wis. Stat. § 46.90
Employee identity — Wis. Stat. § 230.82(4)
Employment — Wis. Stat. § 103.13(2)
Energy alert info — Wis. Stat. § 196.029(2)
Ethics Board — Wis. Stat. § 19.55
Ethics Board — Wis. Stat. § 19.59(3)(d)
Evidence — Wis. Stat. § 165.79
Expunged youthful records — Wis. Stat. § 973.015
Fertilizer solid — Wis. Stat. § 94.64(5)
Financial info (family actions) — Wis. Stat. § 767.27(3)
Geologic exploration — Wis. Stat. § 107.15(4)(f)
Ginseng records — Wis. Stat. § 94.50(6)
Ginseng reports — Wis. Stat. § 29.611(9)(g)
Grand Jury transcripts — Wis. Stat. § 968.45(2)
HIV test results — Wis. Stat. § 252.15(5)
Heal Estate transfer returns — Wis. Stat. § 77.23
Health/personal records — Wis. Stat. § 50.09(1)(f)(3)
Income and Gift tax returns — Wis. Stat. § 139.38(6)
Income and Gift tax returns — Wis. Stat. § 139.82(6)
Income Tax — Wis. Stat. § 71.78
Incompetency — Wis. Stat. § 55.06(17)
Incompetency — Wis. Stat. § 880.33(6)
Induced abortion reporting — Wis. Stat. § 69.186
Informants identities, natural resources law violations — Wis. Stat. § 23.38(2)
Informants identities, evidentiary privilege — Wis. Stat. § 905.10
Insurance rehab proceedings — Wis. Stat. § 645.24(3)
Insurance security fund — Wis. Stat. § 646.12(2)(e)
Interception of wire or oral communication — Wis. Stat. § 968.30(7)(b), (9)(b)(2)
John Doe proceeding — Wis. Stat. § 968.26
Jury note-taking — Wis. Stat. § 805.13(2)(a)(1)
Jury note-taking — Wis. Stat. § 972.10(1)(a)(1).
Juvenile — Wis. Stat. § 343.24(3)
Juvenile Licenses — Wis. Stat. § 343.30(5)
Juvenile police records — Wis. Stat. § 48.396
Laboratory certification — Wis. Stat. § 299.11(7)(b)(3)
Law Enforcement — Wis. Stat. § 905.09
Legislative Audit Bureau audits — Wis. Stat. § 13.94
Legislative Counsel Staff requests — Wis. Stat. § 13.91
Legislative drafting requests — Wis. Stat. § 13.92(1)(c)
Legislative fiscal bureau — Wis. Stat. § 13.95
Marriage license — Wis. Stat. § 765.002(4)
Medical Assistance — Wis. Stat. § 49.45(4)
Mental Health — Wis. Stat. § 51.30
Mining statement — Wis. Stat. § 107.02
Motor vehicle info — Wis. Stat. § 343.16(2)(c) & (d)
Natural heritage inventory — Wis. Stat. § 23.27(3)
Nursing Home/CBRF — Wis. Stat. § 50.03(2)(e)
Pardon application papers, victims statement — Wis. Stat. § 304.06
Parents — Wis. Stat. § 49.22(2) & (4)
Paternity hearings — Wis. Stat. § 767.853
Patient Heath Care — Wis. Stat. § 146.82
Patients compensation panel — Wis. Stat. § 655.27(4)(b)
Peer review, health care providers — Wis. Stat. § 146.38
Personnel Board — Wis. Stat. § 230.07(1)
Personnel Commission — Wis. Stat. § 230.45
Personnel examinations — Wis. Stat. § 230.16(11)
Pesticide formulas — Wis. Stat. § 94.70(3)(b)
Pesticide licenses — Wis. Stat. § 94.68(4)
Physical exam information — Wis. Stat. § 118.25(2)(c)
Physical exam of defendant — Wis. Stat. § 971.16(2)
Presentence reports — Wis. Stat. § 972.15(4)
Prospecting data — Wis. Stat. § 293.47(3)(b)
Protective orders in depositions and discovery — Wis. Stat. § 804.01(3)
Public Assistance — Wis. Stat. § 49.53
Public Assistance recipients’ bill of rights — Wis. Stat. § 49.001
Public building plans — Wis. Stat. § 101.12(5)(b), (c)
Public defender files — Wis. Stat. § 977.09
Public depository information — Wis. Stat. § 34.03(2)
Public Employee Trust Fund — Wis. Stat. § 40.07
Public Library circulation — Wis. Stat. § 43.30
Pupil communication re alcohol/drugs — Wis. Stat. § 118.126(1)
Pupil records — Wis. Stat. § 118.125
Purchase of vegetable crop reports — Wis. Stat. § 100.235(2)
Record of secret inquest — Wis. Stat. § 979.08(7)
Report of county taxes — Wis. Stat. § 77.76(3)
Revocation of alcohol license — Wis. Stat. § 125.07(4)(cm)
Room tax, forfeitures — Wis. Stat. § 66.75(3)
Sales Tax — Wis. Stat. § 77.61(5)
Savings & Loan Assoc banking examination — Wis. Stat. § 220.06(1)
Savings & Loan Associations — Wis. Stat. § 215.26(8)
Savings & Loan Commissioner — Wis. Stat. § 215.02(6)
Search Warrant — Wis. Stat. § 965.21
Search Warrant, premature disclosure — Wis. Stat. § 946.76
Securities Commissioner — Wis. Stat. § 551.51(2)
Snowmobile accident reports confidential — Wis. Stat. § 350.15(4)
Solid Waste facility, competitively sensitive data — Wis. Stat. § 289.09
Solid Waste, hazardous waste facility, competitively sensitive data — Wis. Stat. § 291.15(2)(a)
Solid Waste recycling authority — Wis. Stat. § 332.42
Tax Returns — Wis. Stat. § 70.35
Tax Returns — Wis. Stat. § 72.06
Tax Returns — Wis. Stat. § 78.80(3)
Tests for metabolic disorders — Wis. Stat. § 146.02(4)
Toxic substances — Wis. Stat. § 101.592
Trade Secrets — Wis. Stat. § 227.46(7)
Trade Secrets — Wis. Stat. § 905.08
Treatment records — Wis. Stat. § 51.61(1)(n)
Victim Compensation — Wis. Stat. § 949.16
Victims of Crimes proceeding — Wis. Stat. § 949.12
Vital records — Wis. Stat. § 69.20
Vocational rehabilitation information — Wis. Stat. § 47.02(7)
Water pollution records, trade secret information— Wis. Stat. §§ 283.43, 283.55(2)(c)
Welfare Services — Wis. Stat. § 46.206
Wills — Wis. Stat. § 853.09(2)

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