Wisconsin Supreme Court rules public should not be charged cost to redact public records

The Wisconsin Supreme Court ruled yesterday that authorities cannot charge the public for redaction costs under its public records law.

The decision rejected an attempt by the City of Milwaukee Police Department to charge redaction costs for providing records in two requests filed by reporters at the Milwaukee Journal Sentinel.

Reporter Ben Poston requested 100 incident reports and reporter Gina Marie Barton requested incident report summaries from all sexual assaults from 2009 from the Milwaukee Police. The newspaper sued when the department attempted to charge $4,000 for the cost of redacting the records.

"The city’s argument is they could have charged all costs for complying with public records law. That to my mind would have opened the door to expansive payments," said the newspaper's counsel Robert Dreps.

Wisconsin's public records law describes four specific categories for which authorities may charge fees – up to the amount of the actual cost for complying with a records request. Authorities may charge requestors for 1) "reproduction and transcription of" a record, 2) "photographing and photographic processing," 3) "locating a record," and the 4) "mailing or shipping of any copy or photograph of a record."

The court rejected the possibility that "redacting" records could be considered part of the cost of locating a record or the reproduction and transcription of a record. Instead, it found that the language of the statute did not create the ability to charge for redaction fees. It noted that this construction was also most consistent with the policy goal of the statute to "foster transparent government"

"[T]he interpretation prohibiting the imposition of fees for deletions is the more natural interpretation of the text and also comports with the public policy favoring public access to records," the court held.

Two concurring opinions agreed with the decision, but expressed concern that expensive requests may place a burden on municipalities that should be addressed by the legislature.

"There can be no dispute that public records requests can be highly salutary and may expose deficiencies and shortcomings in public performance. But some public records requests may harass public officials or units of government," stated Justice David Prosser in his concurring opinion.

In part for that reason, while Prosser's concurring opinion agreed that the decision "[i]n all likelihood" reached the correct result in its interpretation of the statute, it asked the legislature to revisit the statute to address the subject of fees in light of yesterday's decision.

A statement released by Milwaukee city attorney Grant F. Langley said "[t]he city will, of course, comply with the court's opinion and the taxpayers will absorb these costs."

Related Reporters Committee resources:

· Wisconsin – Open Government Guide: 1. Levels or limitations on fees.