Public Records FAQ 8
Wisconsin strongly favors the public’s right to access public records. Assuming a records request is sufficiently specific (see Wis. Stat. § 19.35(1)(h)) and involves a public record (see Wis. Stat. § 19.32(2)), a copy of the requested record must be provided to the requester unless: (1) a state or federal law exempts the record from disclosure; (2) Wisconsin case law exempts the record from disclosure; or (3) a “balancing test” analysis determines the public interest in nondisclosure outweighs the strong presumption in favor of the public interest in disclosure.
Accordingly, when a custodian is faced with a sufficiently specific request for a public record s/he should first determine whether a statute or court decision limits access to the requested record. Some examples of records that are exempt from disclosure pursuant to state statute include patient health care records, computer programs, trade secrets, personal property tax returns, and real estate transfer returns. Additionally, court decisions have determined that the public records law disclosure requirements do not apply to the names of the ultimate purchasers of municipal bonds issued by the municipality or to documents in district attorneys’ files relating to the prosecution of a case. If it is unclear whether a statute or court decision applies to a particular record or what procedures should be followed, the custodian should consult with the municipal attorney.
Typically, access to the requested record is not limited or prohibited by any statute or court decision and the custodian must engage in the above-referenced balancing test. This requires the custodian to weigh the competing interests involved and determine whether disclosure would result in sufficient harm to the public interest that outweighs the recognized public interest in allowing access to public records (note, it is the public interest in nondisclosure/disclosure, not the interest of a particular individual who may be the subject of the public record). In performing the balancing test, closed session exemptions to the open meetings law under § 19.85(1) are indicative of public policy and can be considered as balancing factors favoring nondisclosure but are not dispositive and do not relieve the custodian of the duty to engage in the balancing test. Merely referencing an open meetings law exemption or asserting, in general terms, that disclosure would be contrary to the public interest is insufficient evidence that the custodian engaged in the balancing test. Instead, while a custodian is not required to provide a detailed analysis of a record and why public policy directs that a record be withheld, s/he must provide a specific public policy reason if the request is to be denied. If a custodian cannot articulate a specific public policy reason for denying access to a record, then the record must be released.
Finally, if a record contains both information that should be released and information that should not be released, the custodian must release the information that can be disclosed and redact the information that should not. Any redacted information constitutes a partial denial of the public records request and an explanation for the redaction must be provided. In addition, before releasing a record pertaining to a public employee that falls within § 19.356(2)(a), the custodian must give the employee notice of a decision to release the record and an opportunity to obtain a court order restraining the proposed release. (rev. 8/20)