Editor’s note: Several changes were made to Wisconsin’s Open Records law in the 2016 legislative session. The state Department of Justice is holding two three-hour seminars to explain the changes to reporters and news managers. The first is in Madison on October 12th; the second is in Green Bay on October 26th. REGISTRATION IS REQUIRED, and details are here.
As a reporter working in Wisconsin, you should be aware that our state has a very strong open records law, both in the statutes passed by the state legislature and in the case law where the open records law has been tested in court. In Wisconsin, there is a presumption that reporters and private citizens should have very broad access to public records.
NOTE: The person requesting the record does not need to give their name, the organization they represent, nor the reason for the record request. While it is customary to do so, it is not required by law.
You should know that the law applies only to public records, and not to private companies – unless the record pertains to a contract between the private company and a governmental body. You must make your request for a public record to the authority which created the record, or, from the authority which has custody of the record. For example: a city or village may have contracted with a private company for assessments. The assessment record should be requested from the municipality.
You can make an open records request orally (in person or on the phone) or in writing, but be aware that a written request requires a written response from the custodian of the record. And, before any enforcement action can be taken, a written request is required. It’s easy to do it in writing and you can easily download a template here at the Freedom of Information Council website. All you have to do is reasonably describe the record or information you want. If you make the request in writing and get denied, the custodian’s denial must be in writing and must include specific reason(s) for the denial.
Another source for information about our state’s open meetings and open records law is the Legal Services part of the State Justice Department’s website. You can find links to download pdf’s with brief summaries and information to help you when you’re working on a story.
The custodian of the record can charge you for providing the materials you request. But the law says the charge can be only the actual, necessary, and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized by law. For example, it would be unreasonable for a records custodian to charge you five dollars a page for simply copying a few pages for you. A quarter a page is typical. A records custodian may also charge a fee for locating the record if the cost is $50 or more. You can easily learn more specifics about the allowable open records fees.
You do not have an absolute right to every record created by a public body. Things like trade secrets, identities of law enforcement informants, certain computer programs, and some personally identifiable information in public records are all protected by the law. For example, you don’t have a right to get copies of District Attorney’s investigative files.
There are grey areas in the law, and in such cases, a judge will apply a “balancing test”. The court must weigh the competing interests involved, and decide if permitting inspection would result in harm to the public interest which outweighs the policy that allows public inspection.
One way to learn more about Wisconsin’s Open Records Law is at the Wisconsin Freedom of Information Council website where you can easily get up-to-speed on the law, the way it has been interpreted, important case references, and even download a template which will assist you in making an official open records request.