By D&K’s School and Higher Education Law Team
The Wisconsin Supreme Court ruled Wednesday, June 27, 2012 that public entities must bear the expense associated with redacting confidential information from documents in response to public records requests. The Supreme Court in Milwaukee Journal Sentinel v. City of Milwaukee held that the public records law provides no authority to pass on the cost of performing required redactions of records to the requestor, leaving that cost solely with the public entity. State Supreme Court Justice Roggensack and three other Justices wrote a separate opinion in which they agreed that the law as currently written does not include authority to charge requestors for redaction expenses which also included a strong plea to the legislature to address the effects this will have on local governments.
One of the bedrock principles of Wisconsin government has been the openness of its governmental institutions as codified in Wisconsin’s public records statute. The obligation to provide access to government records is however, not without its complications. Principal among them is the cost of compliance. This cost has escalated with the explosion of information and records in the technology age. As is often the case, the public records law struggles to fit the realities of tightening municipal budgets and increased records created and maintained by public entities in the course of carrying out the public’s business.
The City of Milwaukee case involved a request for police incident reports created and maintained by the City of Milwaukee Police Department. The newspaper made several requests over a period of time. After complying with several requests, the City finally informed the paper that it was going to have to reimburse the City for the cost of reviewing and redacting confidential information contained within the records sought. The cost was estimated to be in excess of $3,000. The newspaper sued the City, claiming that the City had no authority to charge it for redaction expenses. Both the City and the newspaper agreed that the estimated cost was a reasonable approximation of the actual, necessary and direct cost of performing the required redactions.
Previous Developments in this Area
Wisconsin statute section 19.35(3) allows public entities to recover the “actual, necessary and direct” costs of location, reproduction and mailing of records in response to a request. In 1983, the Wisconsin Attorney General recognized the public records law requires public entities, or “authorities” under the law, to separate information subject to release from that information not subject to release by redacting the latter and releasing the balance of the document. In that opinion, the Attorney General noted this would come at some expense to the authority, but the legislature had not granted to authorities the ability to recover that particular cost from records requestors.
In 2002, the Wisconsin Supreme Court issued the public records decision, Osborn v. Board of Regents of the University of Wisconsin. In Osborn, the Court reviewed a request involving a larger number of documents that would require a monumental redaction effort. The Court noted the University would not be required to incur the expense of complying with the request. A few years later, in 2008, the Court issued another public records case, WIREdata, inc. v. Village of Sussex. The Court in WIREdata stated that an authority may “recoup all of its actual costs” of complying with a public records request. While neither case directly held that the cost of redacting confidential information could be passed to a public records requester, based on these decisions, many public entities reasonably believed that the cost of reviewing and redacting confidential information from otherwise releasable records – a task that represents the greatest cost of complying with the public records law – could now be shifted to the requestor.
Shifting such cost to the requestor has served to protect public entities from overly burdensome requests, particularly involving electronic communications. In addition, this has provided authorities leverage to communicate with requestors, in light of the high costs, to refine their requests. This served not only to reduce the burden and the cost of complying with the requests, but also to provide an opportunity for the requestors to obtain the information they actually wanted, rather than thousands of pages of extraneous documents.
The Court’s Reasoning
The Court’s decision in City of Milwaukee now returns to the 1983 Attorney General’s opinion as the appropriate interpretation of the law. Further, the Court clarified that its prior decisions in both Osborn and WIREdata when read in context, allowed for recovery of all costs of reproduction and transcription of the record; photographing and photographic processing; locating a record, and mailing or shipping of any copy or photograph of a record, but did not intend to enable public entities to recover the cost of redaction from records requestors. The undercurrent of the Court’s decision was that the law allows an authority to impose fees for the tasks specifically stated in the statutes, and no others. As the Court stated:
“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. It did not. The most reasonable way to interpret the Law is to say that the legislature intended an authority to impose fees only for the tasks specified in the Law.”
Implications for Public Entities
The concurring opinion of the Court includes a strong plea to the legislature to address the issues and potential costs that may result from the City of Milwaukee decision. The concurrence notes the City of Milwaukee decision opens the door for both harassing conduct by requestors and places significant burden on the already stretched taxpayer resources at the local government level. Of additional note is the realization that, although a large municipality such as the City of Milwaukee may be able to comply with the request, a small one will be much less able to do so.
As Justice Roggensack pointed out, the City of Milwaukee decision removes a major resource for public entities in dealing with unduly burdensome requests. Public records requests, even if made with the best intentions, have the practical effect of diminishing the capacity of public employees to focus on the work of the government. Both Justice Roggensack and State Supreme Court Justice David Prosser Jr. mention the possibility that this decision will result in increased activity in the public records arena. The Justices noted that the request in the Osborn case involved some 450,000 pages of documents and the time required to review and redact confidential information from that volume of documents is staggering.
Based on the decision, public entities are now clearly prohibited from recovering costs associated with performing the law’s mandatory redaction process. The only method to address this is to request that the state legislature undertake corrective legislation. Many will recall that Davis & Kuelthau made the same suggestion in the wake of the public records case involving personal email communications (Schill v. Wisconsin Rapids Sch. Dist.). The law has yet to be revised to adequately address the absence of clear direction on that issue. The public records statute requires a significant overhaul. Without it many municipalities will find themselves devoting an ever increasing amount of resources to responding to requests.
Davis & Kuelthau is ready to assist in navigating this complex area. Please contact your Davis & Kuelthau attorney or the School and Higher Education Law Chair, James M. Kalny, at 920.431.2223 / firstname.lastname@example.org.