19.32 Definitions. As used in ss. 19.32 to 19.39:
(1) “Authority" means any of the following having custody of a record: a state or local office, elective official, agency, board, commission, committee, council, department or public body corporate and politic created by the constitution or by any law, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a special purpose district; any court of law; the assembly or senate; a nonprofit corporation which receives more than 50 percent of its funds from a county or a municipality, as defined in s. 59.001 (3), and which provides services related to public health or safety to the county or municipality; a university police department under s. 175.42; or a formally constituted subunit of any of the foregoing.
(1b) “Committed person" means a person who is committed under ch. 51, 971, 975 or 980 and who is placed in an inpatient treatment facility, during the period that the person's placement in the inpatient treatment facility continues.
(1bd) “Elective official" means an individual who holds an office that is regularly filled by vote of the people.
(1bg) “Employee" means any individual who is employed by an authority, other than an individual holding local public office or a state public office, or any individual who is employed by an employer other than an authority.
(1c) “Incarcerated person" means a person who is incarcerated in a penal facility or who is placed on probation and given confinement under s. 973.09 (4) as a condition of placement, during the period of confinement for which the person has been sentenced.
(1d) “Inpatient treatment facility" means any of the following:
(a) A mental health institute, as defined in s. 51.01 (12).
(c) A facility or unit for the institutional care of sexually violent persons specified under s. 980.065.
(d) The Milwaukee County mental health complex established under s. 51.08.
(1de) “Local governmental unit" has the meaning given in s. 19.42 (7u).
(1dm) “Local public office" has the meaning given in s. 19.42 (7w), and also includes any appointive office or position of a local governmental unit in which an individual serves as the head of a department, agency, or division of the local governmental unit, but does not include any office or position filled by a municipal employee, as defined in s. 111.70 (1) (i).
(1e) “Penal facility" means a state prison under s. 302.01, county jail, county house of correction or other state, county or municipal correctional or detention facility.
(1m) “Person authorized by the individual" means the parent, guardian, as defined in s. 48.02 (8), or legal custodian, as defined in s. 48.02 (11), of an individual who is a child, as defined in s. 48.02 (2); the guardian of an individual adjudicated incompetent in this state; the personal representative or spouse of an individual who is deceased; or any person authorized, in writing, by an individual to act on his or her behalf.
(1r) “Personally identifiable information" has the meaning specified in s. 19.62 (5).
(2) “Record" means any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority. “Record" includes, but is not limited to, handwritten, typed, or printed pages, maps, charts, photographs, films, recordings, tapes, optical discs, and any other medium on which electronically generated or stored data is recorded or preserved. “Record" does not include drafts, notes, preliminary computations, and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working; materials that are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent, or bequest; and published materials in the possession of an authority other than a public library that are available for sale, or that are available for inspection at a public library.
(2g) “Record subject" means an individual about whom personally identifiable information is contained in a record.
(3) “Requester" means any person who requests inspection or copies of a record, except a committed or incarcerated person, unless the person requests inspection or copies of a record that contains specific references to that person or his or her minor children for whom he or she has not been denied physical placement under ch. 767, and the record is otherwise accessible to the person by law.
(3m) “Special purpose district" means a district, other than a state governmental unit or a county, city, village, or town, that is created to perform a particular function and whose geographic jurisdiction is limited to some portion of this state.
(4) “State public office" has the meaning given in s. 19.42 (13), but does not include a position identified in s. 20.923 (6) (f) to (gm).
History: 1981 c. 335; 1985 a. 26, 29, 332; 1987 a. 305; 1991 a. 39, 1991 a. 269 ss. 26pd, 33b; 1993 a. 215, 263, 491; 1995 a. 158; 1997 a. 79, 94; 1999 a. 9; 2001 a. 16; 2003 a. 47; 2005 a. 387; 2007 a. 20; 2013 a. 171, 265; 2015 a. 195, 196.
NOTE: 2003 Wis. Act 47, which affects this section, contains extensive explanatory notes.
A study commissioned by the corporation counsel and used in various ways was not a “draft" under sub. (2), although it was not in final form. A document prepared other than for the originator's personal use, although in preliminary form or marked “draft," is a record. Fox v. Bock, 149 Wis. 2d 403, 438 N.W.2d 589 (1989).
A settlement agreement containing a pledge of confidentiality and kept in the possession of a school district's attorney was a public record subject to public access. Journal/Sentinel v. Shorewood School Bd. 186 Wis. 2d 443, 521 N.W.2d 165 (Ct. App. 1994).
Individuals confined as sexually violent persons under ch. 980 are not “incarcerated" under sub. (1c). Klein v. Wisconsin Resource Center, 218 Wis. 2d 487, 582 N.W.2d 44 (Ct. App. 1998), 97-0679.
A nonprofit corporation that receives 50 percent of its funds from a municipality or county is an authority under sub. (1) regardless of the source from which the municipality or county obtained those funds. Cavey v. Walrath, 229 Wis. 2d 105, 598 N.W.2d 240 (Ct. App. 1999), 98-0072.
A person aggrieved by a request made under the open records law has standing to raise a challenge that the requested materials are not records because they fall within the exception for copyrighted material under sub. (2). Under the facts of this case, the language of sub. (2), when viewed in light of the fair use exception to copyright infringement, applied so that the disputed materials were records within the statutory definition. Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, 06-1143.
“Record" in sub. (2) and s. 19.35 (5) does not include identical copies of otherwise available records. A copy that is not different in some meaningful way from an original, regardless of the form of the original, is an identical copy. If a copy differs in some significant way for purposes of responding to an open records request, then it is not truly an identical copy, but instead a different record. Stone v. Board of Regents of the University of Wisconsin, 2007 WI App 223, 305 Wis. 2d 679, 741 N.W.2d 774, 06-2537.
A municipality's independent contractor assessor was not an authority under sub. (1) and was not a proper recipient of an open records request. In this case, only the municipalities themselves were the “authorities" for purposes of the open records law. Accordingly, only the municipalities were proper recipients of the relevant open records requests. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, 05-1473.
A corporation is quasi-governmental if, based on the totality of circumstances, it resembles a governmental corporation in function, effect, or status, requiring a case-by-case analysis. Here, a primary consideration was that the body was funded exclusively by public tax dollars or interest thereon. Additionally, its office was located in the municipal building, it was listed on the city Web site, the city provided it with clerical support and office supplies, all its assets revert to the city if it ceases to exist, its books are open for city inspection, the mayor and another city official are directors, and it had no clients other than the city. State v. Beaver Dam Area Development Corporation, 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295, 06-0662.
Employees' personal emails were not subject to disclosure in this case. Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177, 08-0967.
Redacted portions of emails, who sent the emails, and where they were sent from were not “purely personal" and therefore subject to disclosure. Public awareness of who is attempting to influence public policy is essential for effective oversight of our government. Whether a communication is sent to a public official from a source that appears associated with a particular unit of government, a private entity, or a nonprofit organization, or from individuals who may be associated with a specific interest or particular area of the state, from where a communication is sent further assists the public in understanding who is attempting to influence public policy and why. The John K. MacIver Institute for Public Policy, Inc. v. Erpenbach, 2014 WI App 49, 354 Wis. 2d 61, 848 N.W.2d 862, 13-1187.
To be a “quasi-governmental corporation" under sub. (1) an entity must first be a corporation. To hold that the term “quasi-governmental corporation" includes an entity that is not a corporation would effectively rewrite the statute to eliminate the legislature's use of the word corporation. Wisconsin Professional Police Association, Inc. v. Wisconsin Counties Association, 2014 WI App 106, 357 Wis. 2d 687, 855 N.W.2d 715, 14-0249.
“Notes" in sub. (2) covers a broad range of frequently created, informal writings. Documents found to be notes in this case were mostly handwritten and at times barely legible. They included copies of post-it notes and telephone message slips, and in other ways appeared to reflect hurried, fragmentary, and informal writing. A few documents were in the form of draft letters, but were created for and used by the originators as part of their preparation for, or as part of their processing after, interviews that they conducted. The Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2015 WI App 53, 364 Wis. 2d 429, 867 N.W.2d 825, 14-1256.
The exception from the definition of “record" in sub. (2) of notes “prepared for the originator's personal use" may apply to notes that are created or used in connection with government work and with a governmental purpose. The Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2015 WI App 53, 364 Wis. 2d 429, 867 N.W.2d 825, 14-1256.
A district attorney is employed by an authority and holds a state public office and therefore is not an “employee" within the meaning of sub. (1bg). Moustakis v. Department of Justice, 2016 WI 42, 368 Wis. 2d 677, 880 N.W.2d 142, 14-1853.
Each case involving an alleged quasi-governmental corporation must be decided on the particular facts presented. An entity is a quasi-governmental corporation if, based on the totality of the circumstances, the entity resembles a governmental corporation in function, effect, or status. Accordingly, courts must consider a nonexhaustive list of factors, with no single factor being outcome determinative. The five factors that guided the supreme court's conclusion in Beaver Dam Area Development Corp., 2008 WI 90, are: 1) whether the entity's funding comes from predominately public or private sources; 2) whether the entity serves a public function; 3) whether the entity appears to the public to be a government entity; 4) the degree to which the entity is subject to government control; and 5) the amount of access governmental bodies have to the entity's records. Flynn v. Kemper Center, Inc., 2019 WI App 6, 385 Wis. 2d 811, 924 N.W.2d 218, 17-1897.
“Records" must have some relation to the functions of the agency. 72 Atty. Gen. 99.
The treatment of drafts under the public records law is discussed. 77 Atty. Gen. 100.
Applying Open Records Policy to Wisconsin District Attorneys: Can Charging Guidelines Promote Public Awareness? Mayer. 1996 WLR 295.