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Does the Public Records Law Apply to Private Contractors?
July 8, 2008

On June 25, 2008, the Wisconsin Supreme Court issued a decision further interpreting Wisconsin’s Public Records Law. The Court addressed several different issues, some of which may affect how school districts respond to open records requests, including the format in which they provide records and who will be considered an “authority” when dealing with an outside, independent contractor.

WIREdata, a subsidiary of the Multiple Listing Service, made public records requests of the municipalities of Sussex, Thiensville, and Port Washington, in which it asked for comprehensive information regarding property assessments. The three municipalities had contracted with a private assessor who created databases which stored this information in electronic format. WIREdata requested this information in the exact format it was provided to the municipalities, so that it could manipulate the information using the private contractor’s copyrighted software. The municipalities stated that they were unable to respond to these requests because they involved the distribution of software which was licensed to them by the private contractor. In response, WIREdata made identical requests to the private contractor.

The municipalities responded to WIREdata’s request, albeit not in the exact format requested by WIREdata. Instead of providing the information in the licensed software package, the municipalities instead provided the information in PDF format. Although the PDF version of the information was not as easily manipulated, the PDF version fulfilled the “electronic/digital” format requested by WIREdata.

WIREdata filed a court action in order to enforce its requests, claiming it should be provided the data in the exact format requested. In response to WIREdata’s petition for a mandamus, the Wisconsin Court of Appeals held that the Open Records Law:

…contemplates holding municipalities, but not their independent contractors, responsible for . . . open records law violations. The municipalities are the statutory authorities obligated to uphold the letter and spirit of the open records law and they cannot evade their duties by shifting the creation and maintenance of their assessment records to their independent contractors.

Thus, the municipalities were not able to avoid complying with the open records request by claiming that the records were controlled by the holder of the copyright.

The municipalities appealed to the Wisconsin Supreme Court for a determination, among other issues, as to: (1) whether the release of records in a PDF format was sufficient, allowing them to protect the integrity of their databases; and (2) whether the private contractor assessor was an “authority” under the Public Records Law, so that it was the proper recipient of an open records request.

A Requestor is Not Entitled to Access an Authority’s Database

The Supreme Court determined that the court of appeals was mistaken in concluding that the municipalities did not properly respond to the request when they produced PDF files of the requested information, instead of providing access to the electronic database. The municipalities successfully argued that WIREdata received all of the relevant information possessed by both the municipalities and the assessors when it received PDF files. Additionally, the quality of the data provided by PDF was “the exact same quality of data as the company would have received using any other format.” Thus, WIREdata’s “only remaining complaint” was that the “format was not optimal for its needs.”

The Court held that requestors need not be given access to an authority’s electronic databases to examine them, extract information from them, or copy them. The Court determined that requestors should not be given such direct access because of the substantial risks to the database. For example, confidential data not subject to disclosure under the Public Records Law could be viewed or copied. The database also could be damaged, either inadvertently or intentionally.

A Private Contractor is Not an “Authority” Under the Public Records Law

The Supreme Court was also required to determine whether a private contractor should be considered an “authority” under the Public Records Law, allowing a requestor to make demands directly to a third party contractor. The Court determined that an outside contractor could not be considered an “authority.” Moreover, the Court held that a municipality could not shift its responsibilities under the Public Records Law to an outside contractor. Rather, any request for records created by an outside contractor must be reviewed and responded to by the contracting municipality.
In reaching this decision, the Court reviewed the express language of the statute, noting that “authority” is defined as “any of the following having custody of a record: a state or local official, elected official, agency, board, commission, committee, counsel, department or public body . . . or a formally-constituted subunit of any of the following.” Wis. Stat. § 19.32(1). The Court noted that the statute refers only to public or governmental entities, not outside, third party contractors hired by such entities.

Because the statutory definition does not recognize private contractors, the Court determined that the three municipalities were the proper recipients of the open records requests. Thus, the independent contractor assessor had neither the responsibility to respond to, nor the authority to deny, a public records request. For these same reasons, the Court held that municipalities “may not avoid liability under the open records law by contracting with independent contractor assessors for the collection, maintenance, and custody of property assessment records . . . .”

Conclusion

In issuing its decision in WIREdata, the Supreme Court of Wisconsin set qualified limits on the provision of electronic documents under the Public Records Law. The Court held that requests for electronic databases may be satisfied by providing PDF files. Further, a governmental body will not be required to provide direct access to an electronic database in order to protect its integrity and confidential information it contains. The Court also clearly stated that governmental bodies will not be able to avoid their responsibilities under the Public Records Law by hiring private contractors for the maintenance of such information.

If you have any questions regarding this decision and how it may affect your recordkeeping processes, please contact your Davis & Kuelthau attorney.

 

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