Milwaukee Journal Sentinel v. City of Milwaukee

¶ 68. PATIENCE DRAKE ROGGENSACK, J.

(concurring). While I agree with the lead opinion that there is no express provision in the Public Records Law that addresses an authority's ability to charge for the time involved in separating the confidential portion of a public record pursuant to the directive of Wis. Stat. § 19.36(6), I do not join the lead opinion, but write in concurrence to note that the court's decision will likely result in one of two scenarios: (1) taxpayers will be required to pay for the statutorily required separation *635of voluminous public record requests, rather than the person who will receive and use the records; or (2) public record requests will go unmet due to a lack of necessary personnel to do the separations, while at the same time continuing to carry on the normal operations of the custodial authority.

¶ 69. Fundamentally, this case implicates public policy choices: whether taxpayers or record requesters should bear the financial burden of statutory record separations, and whether the costs associated with voluminous record requests should be addressed in a manner different from that employed for requests of only a few public records. Therefore, although I am aware of and concerned for the significant costs and personnel deployments that voluminous record requests can impose on authorities who are subject to public record requests and who may be operating with diminished revenues and personnel, addressing those concerns is a legislative function, not a function properly undertaken by the courts. Accordingly, I respectfully concur.

I. BACKGROUND

¶ 70. The Milwaukee Journal Sentinel, through two of its reporters, requested voluminous public records. One reporter requested 2,312 records, and the other reporter requested all incident reports and dispatch records relating to sexual assaults for an entire year. All records requested contained confidential information that Wis. Stat. § 19.36(6) required the Milwaukee Police Department to separate out before fulfilling the Journal Sentinel's record request.1

*636¶ 71. The City estimated that it would be required to expend approximately $5,600 in staff time redacting the records requested in order to separate out confidential information in compliance with Wis. Stat. § 19.36(6). The Journal Sentinel refused to pay and instead brought suit in Milwaukee County Circuit Court.

¶ 72. The circuit court agreed that the City had the right to request payment for the staff time required to separate confidential information contained within the requested public records. The lead opinion reverses the circuit court's decision because the Public Records Law is silent in regard to who is to bear the financial burden of complying with Wis. Stat. § 19.36(6), and because the lead opinion concludes that assessing those costs to the requester may interfere with public record requests.2

II. DISCUSSION

¶ 73. When the legislature enacted the Public Records Law, its goal was to provide public access to records that would assist the public in becoming an "informed electorate." Wis. Stat. § 19.31; Milwaukee Journal Sentinel v. Wis. Dep't of Admin., 2009 WI 79, ¶ 52, 319 Wis. 2d 439, 768 N.W.2d 700. In order to facilitate this goal, the legislature created a "presumption of complete public access." Id. Accordingly, statu*637tory interpretation in regard to a Public Records Law request is conducted with complete public access as the starting point, and any construction that limits public access is problematic. Schill v. Wis. Rapids Sch. Dist, 2010 WI 86, ¶ 217, 327 Wis. 2d 572, 786 N.W.2d 177 (Roggensack, J., dissenting).

¶ 74. The lead opinion's decision today is driven by those policies that the legislature articulated in the Public Records Law. However, the statutes enacted to further those policies indicate that the legislature did not anticipate voluminous public record requests such as those that the Journal Sentinel and others have made recently. One notable demonstration that the legislature did not contemplate such requests is that the statutory references to the dollar amounts of the costs that were anticipated are very low.

¶ 75. For example, Wis. Stat. § 19.35(3)(c) permits an authority to impose a fee for locating a record "if the cost is $50 or more," and para. (3)(f) permits an authority to require a requester to prepay for, "any fee or fees imposed under this subsection if the total amount exceeds $5." That a cost of $50 in staff time is sufficient to trigger a charge to a requester and a $5 fee is sufficient for an authority's right to require prepayment by a requester indicate that the legislature did not consider voluminous record requests such as the Journal Sentinel and others have made, where the costs to the custodial authorities are in the thousands of dollars.

¶ 76. Although the legislature did give some consideration to costs that an authority is likely to encounter when complying with a public record request, Wis. Stat. § 19.35(3) enumerates the tasks for which an authority may charge the requester. However, the separation costs that are generated by Wis. Stat. § 19.36(6)'s requirement that confidential information be deleted *638from public records before the records are provided to a record requester are not mentioned. In addition, § 19.36(6), itself, does not address who is to bear the costs of separation that § 19.36(6) requires authorities to undertake.

¶ 77. However, separation costs can be extensive. For example, a review of the briefs filed in another public records case, Osborn v. Board of Regents of the University of Wisconsin System, 2002 WI 83, 254 Wis. 2d 266, 647 N.W.2d 158, shows that the public record requests made to the University required separation of information in 450,000 records. In order to provide separated University records, a University employee would, at a minimum, be required to copy each record and then redact it to block out information that is of a confidential nature. If a University employee could make copies of the 450,000 records and then do the necessary separation in 5 minutes per record, 2,250,000 minutes or 37,500 hours or 4,687.5 eight-hour days would be required to complete the tasks necessary to comply with Mr. Osborn's public record requests.

¶ 78. If we assume that the University employees assigned to this task earn $10/hour in salary and fringes, providing the separated records would cost the University $375,000.3

¶ 79. I don't know what occurred in Osborn after the case was heard here. However, if it is still ongoing, because the Public Records Law is silent about who should bear the financial burden of the record separation that Wis. Stat. § 19.36(6) requires, and given the *639opinions today, it is possible that the University may incur $375,000 in expense in order to comply with Mr. Osborn's Public Records Law request. The University will pass this $375,0000 on to the taxpayers of Wisconsin or to the students who matriculate at the University, without any participation by the requester of the records. This is a problem that the legislature needs to consider.4

¶ 80. The University of Wisconsin likely could meet the requests Mr. Osborn made. On the other hand, if a small municipality with only one employee is the authority that receives a voluminous public records request requiring statutory separation of information, it is likely that no information will be provided because compliance will be beyond the capacity of the authority. See George v. Record Custodian, 169 Wis. 2d 573, 578, 485 N.W.2d 460 (Ct. App. 1992) (concluding that a custodian has the discretion to deny a public records request if the reasons for denial are sufficient to outweigh the strong public policy favoring disclosure). Denial of access based on the substantial burden a voluminous request can create for an authority may be a reasonable exercise of discretion; however, a denial also would cut directly against the access that the legislature sought to achieve by the Public Records Law. Wis. Stat. § 19.31.

*640¶ 81. Accordingly, it would be helpful if the legislature were to revisit the cost issues that have become prominent in public record requests and determine whether the taxpayers should bear the full financial burden for public record requests or whether requesters should be active participants in the cost involved in required record separations.

III. CONCLUSION

¶ 82. The court's decision today will likely result in one of two scenarios: (1) taxpayers will be required to pay for the statutorily required separation of voluminous public record requests, rather than the person who will receive and use the records; or (2) public record requests will go unmet due to a lack of necessary personnel to do the separations and continue to carry on the normal operations of the custodial authority.

¶ 83. Fundamentally, this case implicates public policy choices: whether taxpayers or record requesters should bear the financial burden of statutory record separations, and whether the costs associated with voluminous record requests should be addressed in a manner different from that employed for requests of only a few public records. Therefore, although I am aware of and concerned for the significant costs and personnel deployments that voluminous record requests can impose on custodial authorities who are subject to public record requests and who may be operating with diminished revenues and personnel, addressing those concerns is a legislative function, not a function properly undertaken by the courts. Accordingly, I respectfully concur.

*641¶ 84. I am authorized to state that Justices DAVID T. PROSSER, ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this concurrence.

Wisconsin Stat. § 19.36(6) provides:

*636Separation of information. If a record contains information that is subject to disclosure under s. 19.35(l)(a) or (am) and information that is not subject to such disclosure, the authority having custody of the record shall provide the information that is subject to disclosure and delete the information that is not subject to disclosure from the record before release.

Lead op., ¶ 5.

The example of $10/hour in salary and fringes is more than likely too low, but I use it as an example to give some idea about the costs that are arising under public record requests.

The legislative history of the Public Records Law indicates that the level of demand for record access "is unknown and not predictable without some actual experience." See Fiscal Estimate, 1981 S.B. 250 (Dep't of Admin., 6/22/81), in the Drafting File for ch. 335, Laws of 1981. Therefore, it appears the legislature may have been aware that it would have to revisit the Public Records Law in regard to the costs it would generate for the authorities subject to it.