“Notes” Are Not Subject to Disclosure Under the Public Records Law

The Wisconsin Court of Appeals ruled on June 4, 2015 that notes from an investigation by school district officials into alleged hazing and sexual abuse within its wrestling program were not records and therefore not subject to disclosure under the public records law. The Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2014 AP 1256.

The Voice of Wisconsin Rapids newspaper requested all district records regarding an investigation into the district’s wrestling program. District employees conducted interviews, and retained their personal notes from those interviews. The District denied the newspaper’s request for the notes on the basis that they did not meet the definition of “record” under the law.

After inspecting the requested documents, the circuit court concluded that the documents were “personal notes that were made for the originator[s’] personal use” as defined in Wis. Stat. § 19.32(2). The public records law specifically exempts such documents from its definition of public records.

The three judge appellate court agreed with the circuit court’s labeling of the documents as “notes.” After inspecting the sealed documents, the Court of Appeals stated:

They are mostly handwritten and at times barely legible. They include copies of post-it notes and telephone message slips, and in other ways appear to reflect hurried, fragmentary, and informal writing. In addition, witness testimony included in the discovery materials available to the circuit court consistently describes creation of these documents as a note-taking process.

Based on the above review, the court found that the withheld documents met the definition of “notes” in Wis. Stat. § 19.32(2) and were not subject to disclosure.

The court also found no evidence that the notes were shared with other employees. (Had they been, according to an earlier attorney general opinion, they would have become a record. See 77 Wis. Op. Att’y Gen. 100 (1988)).

Public organizations can rely upon this court decision for greater clarity in exempting personal notes from disclosure under the public records law. When entering into investigations or internal investigation meetings, it is well advised to evaluate the intent and purpose of taking notes and identify that any notes taken are intended to be the personal notes of the note taker. On the other hand, if certain notes are intended to become the “minutes” of the meeting, are intended to form the basis of a report, or are shared with others in the course of the investigation, the public entity should anticipate that it is creating records that are more likely to be determined as records subject to disclosure.