The Wisconsin Department of Natural Resources (“WDNR”) recently announced a policy change in Wisconsin’s Confined Animal Feeding Operation (“CAFO”) Program wherein WDNR will now release SnapPlus databases or GIS shapefiles to the public in cases where the requester specifies electronic data files or electronic records associated with a WPDES permittee’s Nutrient Management Plan (“NMP”).  Release of this data provides information that Congress has deemed to not be subject to the federal counterpart Freedom of Information Act. 

This policy change is based on WDNR’s interpretation of the 2019 Wisconsin Court of Appeals decision in Lueders v. Krug and the update to the Wisconsin Department of Justice’s (DOJ) guidance regarding electronic record productions based on the same. Lueders concerned the scope of a Wisconsin government entity’s obligation to meet enhanced public records requests for electronic documents. Specifically, the court addressed the issue of whether a document custodian has a duty under the public records law to provide responsive emails in the format requested. The court’s analysis turned on the language of Wis. Stat. § 19.35(1)(b) and the court reasoned that “[t]he record makes clear that copying the e-mails onto a flash drive would have provided Lueders with a copy of the e-mails that contained all the information, including the metadata, that the original e-mails themselves contain; however, affording Lueders access to only the paper printouts did not.” Lueders v. Krug, 2019 WI App 36, 15, 388 Wis. 2d 147, 931 N.W.2d 898. Based on this reasoning, the court held that while Lueders’ initial request had been satisfied, the “subsequently enhanced” request was not as he “was entitled to the emails in electronic format” when he specifically requested it. Lueders, 2019 WI App at 2, 15.

Considering the Lueders decision, the Wisconsin DOJ updated its Compliance Guide for Wisconsin Public Record Laws (“Guide”). The Guide provides that electronically stored information generally constitutes a “record” as defined by the public records law if the recorded information is created or kept in connection with official business—it is the substance, not the format, of the information which controls whether it is deemed a record or not. DOJ interprets the Wis. Stat. § 19.32(2) definition of electronic records to include, for example, processing documents, database files, email correspondence, web-based information, among others. The challenge with electronic records is that often such records contain unique data that is not available in print records, and courts have found that substantially all that unique data must be released to fulfill a specific electronic records request. WDNR’s notice suggests it is interpreting SnapPlus databases or GIS shapefiles to be substantive and unique components of the electronic record, which should be, and will be, released to the public in cases where a requester specifies that a request include electronic data files or electronic records associated with a WPDES permittee’s NMP.

Although Wis. Stat. § 19.35 establishes a presumption that government records are public records and thus publicly accessible, the Wisconsin Administrative Code sets forth a process by which a party may apply to WDNR to have certain submitted information  treated as confidential. Pursuant to Wisconsin Administrative Code NR § 2.19(3), any person may seek confidential treatment of information by filing a written application with an accompanying affidavit in support of the application with the WDNR. Generally, an application must include the name and address of the applicant, the position of the individual filing the application, the specific type of information for which confidential status is sought, and the facts and supporting legal authority believed to constitute a basis for confidential treatment of information. Thus, WPDES permittees should consider taking a proactive approach to seek confidential status of information such as the subject SnapPlus databases or GIS shapefiles.

For more information or assistance in preparing such filings, contact your Michael Best attorney or an attorney listed below.