Wisconsin Supreme Court Decides Important Public Records Case

Municipal Law Alert, June 2012

On June 27, 2012, the Wisconsin Supreme Court reaffirmed Wisconsin’s long-standing commitment to open and transparent government. In Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, the Court held that the Milwaukee Police Department could not charge the Milwaukee Journal Sentinel for time spent by police department employees redacting non-public information from documents that were subject to the Journal’s open records request.

This case began in 2010, when the Journal requested a significant number of incident reports from the police department. At first, the police department provided the records without charging for staff time spent redacting non-public information. Then, in response to additional, voluminous requests, the police department informed the Journal that it would need to make an advance payment of $3,390 for staff time spent reviewing and redacting the records. The Journal refused to pay the requested charges and commenced an action against the City of Milwaukee and the Milwaukee Police Department.

The parties stipulated that the police department’s estimates of time required to review and redact the requested records were made in good faith and were not intended to generate a profit. By the time the case came before the Supreme Court, the question was whether, under the Wisconsin Public Records Law, the police department could charge for staff time spent reviewing and redacting the requested records. The Court noted that the Public Records Law empowers a governmental body to impose a fee that does not “exceed, the actual, necessary, and direct” cost of the following four tasks: (1) reproduction and transcription of the record, (2) photographing and photographic processing, (3) locating a record, and (4) mailing or shipping of any copy or photograph of a record.

The Court reasoned that, even though the Legislature knew that certain items would need to be redacted, it did not list redaction as one of the items for which cost could be recovered. Therefore, the absence of “redaction costs” must have been intentional. Additionally, Justice Abrahamson’s lead opinion relied heavily on the Declaration of Policy in the Public Records Law 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.” Taken together, the lead opinion refused to read an additional cost hurdle into the Public Records Law. To emphasize this point, the lead opinion said, “If the legislature had wanted to allow an authority to impose fees for a broad range of tasks, or if it had wanted to include the task of redaction as a task for which fees may be imposed, it would have said so.”

Based on this language, it is probably safe to say that a municipality may only charge for the four items listed above and nothing more. In addition, based on this case, it would appear that the Court will read those four items narrowly to include only what is set forth in the plain language and not items that may be ancillary to the listed items (such as redaction).

Apparently understanding that the reading of the law poses significant problems for governmental bodies faced with voluminous records requests, the majority opinion, and a separate concurring opinion by Justice Prosser, urged the legislature to consider amending the Public Records Law to include a cost-recovery mechanism for items like staff time spent redacting records.

In summary, if your municipality receives a public records request, and your municipality wishes to charge the requesting party making the request, this case makes clear that you may do so, but only with respect to: (1) reproduction and transcription of the record, (2) photographing and photographic processing, (3) locating a record, and (4) mailing or shipping of any copy or photograph of a record.

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