Open Records Law Decision Regarding the Costs of Redacting

In a unanimous decision in the case of the Milwaukee Journal Sentinal vs. the City of Milwaukee, the Wisconsin Supreme Court ruled that the City of Milwaukee cannot charge the costs of redacting information from records to a record requester. The Wisconsin Public Records Law, Wis. Stat. 19.35 et al, allows anyone to request government records, and in general most government records need to be released to the requester. There are some important exceptions, and occasionally a document may contain some information that would need to be released, and some information that would need to be kept confidential. In such a case, the municipality must release the document after redacting the confidential information. The statute allows municipalities to charge the requestor for certain costs.

In what appears to be a fairly narrow decision, the Supreme Court said that the cost to the municipality for redacting information is not chargeable back to the requester. Of course, if the requestor cannot be charged, and the municipality must release the document, that leaves the municipality – i.e. the taxpayers – to foot the bill. This was pointed out by several of the Justices, who nevertheless decided that the plain language of the statute does not permit charging for redaction. Although the holding appears to be fairly narrow, the ramifications may be broader, in that municipalities must now be very careful to only charge what the statute plainly permits. However, that language, while supposedly “plain” still leaves room for interpretation.

The key language is: “An authority may impose a fee upon the requester of a copy of a record which may not exceed the actual, necessary and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law.” However there have been, and will continue to be, arguments over just what is included in the “…actual, necessary and direct cost of reprodoction…”

Here’s a link to a Milwaukee Journal Sentinal article on the case.