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Open Records – A Unanimous Decision From A Divided Court

With all the controversy involving Wisconsin Supreme Court’s members, it may have been a bit of a surprise that all justices recently found in favor of the Milwaukee Journal Sentinel in an Open Records challenge it levied against the City of Milwaukee Police Department.

The facts of the case are straightforward:  the Milwaukee Journal Sentinel made an Open Records Request of the City of Milwaukee Police Department of computer-aided dispatch records and related incident reports for fourteen crime categories for a two-week period in March 2010.  See Milwaukee Journal Sentinel v. City of Milwaukee, —- WI —-,¶ 8, — N.W.2d —-, 2012 WL 2401566 (2012).  The City found that 2,312 dispatch records and 743 incident reports were responsive to the Journal Sentinel’s request.  Id.  The City requested $2,018.80 in advance for the location and copying of the requested records.  Id.  After numerous modifications to the Journal Sentinel’s requests and the City’s response on the charges to be made in response to those requests, the Journal Sentinel requested an incident summary for sexual assaults during the year of 2009.  Id. at ¶ 12-13.  The City requested advance payment of $3,516.75, over $3,000 of which were costs associated with the time spent reviewing and redacting the records.  The Journal Sentinel refused to pay the demanded amounts and commenced suit against the City, seeking an order compelling the City to disclose the records without charges for redacting.  This Case reached the Wisconsin Supreme Court on bypass from the Court of Appeals. 

Chief Justice Shirley Abrahamson, perhaps the member of the Wisconsin Supreme Court most committed to Wisconsin’s Open Records Law, authored the majority of opinion of the Court.  After reviewing Wisconsin’s strong commitment to open government and the fact that the law does require deletion of certain information that is not subject to disclosure, Chief Justice Abraham then turned the focus on the fees that may be imposed under the Open Records Law.  Specifically, Wisconsin Statutes Section 19.35(3) provides that the “actual, necessary, and direct cost” of reproduction and transcription, photographing and photographic processing, location of, and mailing or shipping of the requested records may be charged to the requester.  Id. at ¶ 25.  Chief Justice Abrahamson spoke for the majority in rejecting the City’s argument that redaction costs are necessarily included in the “location” and “reproduction,” based on the standard definitions of those words, of the requested records.  Id. at ¶ 26.  The majority opinion gave its observation that the “language of Wis. Stat. § 19.35(3) is not particularly complex” and that the “legislature provided four tasks for which an authority may impose fees on a requester:  “reproduction and transcription,” “photographing and photographic processing,” “locating,” and “mailing or shipping.”  Id. at 33.  It then noted that it would be an “unnatural reading” of the statute to include costs of redaction into any of the categories for which charges may be imposed.  Id. at ¶ 38

The majority noted the technological advances that had been made in recent years and that a court may entertain a “creative” reading of a statute if it is necessary to further the statute’s purpose or prevent an absurd result.  Id.  Ultimately, however, the majority concluded that because the Open Records Law’s purpose is to “provide the people of Wisconsin with the greatest possible information regarding the affairs of the government,” it could not accept the City’s unnatural reading of the fees that may be imposed under the Open Records Law.  Id. at 39-40

Justice Patience Roggensack filed a concurring opinion, which was joined by Justice David Prosser, Justice Annette Ziegler and Justice Michael Gableman.  She noted that although the policies underlying the Open Records Law are clear, the “legislature did not anticipate voluminous public record requests,” as evidenced by the “very low” dollar amounts referenced in the Open Records Law.  Id. at ¶¶ 74 and 75 (noting that Wis. Stats.  § 19.35(3)(c) permits imposition of location fee if the cost is $50 or more and § 19.35(3)(f) authorizes prepayment requirements if the fee imposed will exceed $5).  She then referenced a previous decision of the Court, Osborn v. Board of Regents of the University of Wisconsin System, 2002 WI 83, 254 Wis.2d 266, 647 N.W.2d 158, for the argument that redaction costs of over $300,000 could have been incurred by the University (but, in actuality, the taxpayers in Wisconsin) to comply with the records request. She disagreed with the justness of shifting of the financial burden of a record requester onto taxpayers and urged the legislature to revisit the Open Records Law to “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.”  Id. at ¶ 81

Justice David Prosser filed a concurring opinion and joined Justice Patience Roggensack’s concurring opinion.  He believed that a “shrewd requester” would be able to “obtain valuable information at little or no cost so long as they are able to minimize or avoid the ‘four specific tasks.”  Id. at 62 (citation omitted).  He also expressed his opinion that permitting authorities to impose costs necessitated by a records request would limit “malicious, frivolous, or unreasonable requests.”  Id. at ¶ 65.  Consequently, Justice Prosser joined in Justice Roggensack’s concurrence.

Only time will tell if the legislature takes Justice Roggensack up on her request to revisit the charges that may be imposed under the Open Records Law.  Until such time that it does, however, records requesters in Wisconsin will continue to receive full support of the Wisconsin Supreme Court, so long as their requests (or any challenges arising therefrom) comport with a strict constructionist reading of the Open Records Law.

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