How does Wisconsin statute section 19.36(7) apply to the names of “final candidates” for public positions, such as school superintendent or police chief?

Open Records Law

Q: How does Wisconsin statute section 19.36(7) apply to the names of “final candidates” for public positions, such as school superintendent or police chief?

A: Section 19.36(7), Stats., of the Open Records Law provides access to the names of all final candidates for public positions. Whenever there are at least 5 candidates, the statute provides for public access to the names of “each of the five candidates who are considered most qualified for the office or position by an authority.” Sec. 19.36(7)(a), Stats. When there are fewer than 5 candidates, the statute provides access to “each such candidate.” Id.

What is not so clear under the statute is who constitutes a “final candidate” when there are more than five candidates being “seriously considered” for the position. The statute defines final candidate as “each applicant for a position who is seriously considered for appointment or whose name is certified for appointment and whose name is submitted for final consideration to an authority for appointment to any state position, except a position in the classified service, or to any local public office.”

Government entities have tried to restrict public access to candidate names by narrowing the pool of candidates to a number larger than five, interviewing all of those candidates, and then narrowing the candidate pool to two or three before making a final selection. The government entities then argue that only the names of the final two or three candidates need to be disclosed because that is the “pool” from which the successful candidate was selected.

The Wisconsin Attorney General in 2004 rejected that argument and concluded that the Open Records Law requires public access to the names of all of the candidates interviewed in the above example. In a July 12, 2004 letter to the The Chippewa Herald, the Attorney General explained how section Sec. 19.36(7)(a), Stats. provides public access to the entire group of candidates who were interviewed for the superintendent position in the Chippewa Falls School District. Consistent with the statutory mandate that the Open Records Law provide access to the greatest possible information, the Attorney General concluded that providing only the names of the last two candidates is too small of a group because at least five candidates were seriously considered for the position. The names of all the of the candidates interviewed was “[t]he next largest group of candidates” in the selection process and therefore, all were “final candidates” subject to public disclosure under section Sec. 19.36(7)(a), Stats. .

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