Municipal Email: Best Practices Q&A

Municipal Law Alert, November 2011

Introduction

The Open Records law is found in Wisconsin Statutes Chapter 19, which is titled “General Duties of Public Officials.” Open government is the declared policy of Wisconsin, and the statute specifically states: “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.”

Thus, there is a presumption that citizens are entitled to government records, with some important exceptions.

What is a “record”?

Wisconsin Statute § 19.32(2) states:

“Record” means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority….

Additionally, for something to be a government “record”, it must in some way relate to the transaction of government business. See Schill v. Wisconsin Rapids School District, 2010 WI 86. So, it is the content, not the medium or format, that determines whether a document is a “record” or not.

What is NOT a record?

Wisconsin Statute § 19.32(2) states that “record” does not include:

  • drafts, notes, preliminary computations and like materials prepared for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is working; [this exception is construed very narrowly]
  • materials which are purely the personal property of the custodian and have no relation to his or her office;
  • materials to which access is limited by copyright, patent or bequest; or
  • published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.

Also, a record that does not exist is not a record – that is, a municipality does not have to create documents in response to an open records request.

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