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March 7, 2018Client Alert

Dane County Judge Attempts Expansion of Public Records Law

Dane County Circuit Judge Rhonda Lanford recently concluded in Bill Lueders v. Scott Krug that the records custodian for Representative Scott Krug (R-Nekoosa) should have provided electronic copies of emails as requested. In response to an initial records request, Representative Krug’s staff produced more than 1,500 responsive pages of records related to state policies on certain water policy topics. For a per page fee, Krug had offered to make copies of the pages that the requestor wanted. However, the requestor, not wanting to pay the cost of the record copies, amended the request that Krug provide “the records in electronic form”. Krug’s office declined to provide records in an electronic format noting that they had “provided you access to review the records you have requested and the ability to receive copies of those records that are as substantially readable as the original.” Plaintiff then sued to obtain electronic copies of records.

Judge Lanford wrote that lawmakers have yet to set a specific standard for electronic records production under the open meetings law but that the state law does require public officials to provide copies of records that are “substantially as good” as the official documents or files. “If the requestor indicates that his ability to access the record would be best served by a particular format of copy, the custodian should produce the copy in that format unless doing so would be so burdensome as to be inconsistent with the conduct of governmental business.” 

This is one of the few electronic records cases issued after the Supreme Court’s decision in WIREdata, Inc. v. Sussex, et al., where the court sidestepped the question as to whether a requester was entitled to receive a particular file in an electronic file format requested. In WIREdata, the plaintiff initially made a request for “electronic/digital files” of several municipalities’ property assessment records kept by each municipality and whose access and review capabilities was facilitated through the use of a third party vendor’s software (Initial Request). The municipalities first offered WIREdata paper copies and then later produced PDF copies in response to the Initial Request. WIREdata objected to the documents because the information was not easily searchable or manipulated and wanted, among other things, access to the vendor’s software database so that the requestor could easily search for the records they sought in the manner they wished. WIREdata then subsequently directed its request to the third party vendor (and not the municipality), narrowing their written request to obtain access to the database/software and the records therein (the Enhanced Request).  

Without deciding whether the municipalities at issue were required to produce the PDF copies (instead of the paper copies) pursuant to the Initial Request, the Supreme Court in WIREdata concluded that the subsequent production of electronic files in PDF format by the municipalities in response to WIREdata’s initial request for “electronic/digital copies” satisfied the open records law. However, the Supreme Court did not address WIREdata’s subsequent Enhanced Request because the requests were directed to the private contractors that are not responsible “authorities” under the open records law. Thus, the Supreme Court did not have to address whether the PDF copies were responsive to the Enhanced Request. Nevertheless, the Supreme Court did provide some guidance on a requestor’s direct access to an authorities’ database holding:

We disagree with the court of appeals' statement that requesters must be given access to an authority's electronic databases to examine them, extract information from them, or copy them.  See WIREdata, Inc., 298 Wis.2d 743, ¶¶ 1, 3, 63, 64, 65, 70, 729 N.W.2d 757. We share the DOJ's concern, as expressed in its amicus brief, that allowing requesters such direct access to the electronic databases of an authority would pose substantial risks.   For example, confidential data that is not subject to disclosure under the open records law might be viewed or copied.  Also, the authority's database might be damaged, either inadvertently or intentionally.  We are satisfied that it is sufficient for the purposes of the open records law for an authority, as here, to provide a copy of the relevant data in an appropriate format.

While the Dane County Circuit court’s decision in Lueders is not binding precedent unless and until the Wisconsin Court of Appeals weighs in on the subject should the case be appealed, it does signal upcoming challenges to an authority’s production of electronic records. Important assessments it considered by relying on WIREdata in determining whether, and in what format, electronic records need to be produced included:

  • The specific language in the request.
  • Whether the requester indicates that their ability to access the record would be best served in a particular format.
  • Whether the copies provided are as “substantially good” as the format requested.
  • Whether the request demands access to an authority’s database, and whether such access presents any “substantial risks.”

It will be interesting to see if the Justice Department pursues an appeal in this matter. Requests for public records in certain electronic formats will only increase in the coming years. This would be an excellent time to review your public records policy particularly regarding how to address requests for records in electronic format.

For further information, please contact Robert W. Mulcahy, Kevin Terry, or Luis I. Arroyo.

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