March 11 through 17 is Sunshine Week. Wisconsin has some of the strongest “sunshine laws” in the country, and I salute all of the Wisconsin records custodians, meeting organizers and others who diligently perform their duties under these laws.
This spring, an important public records case is pending in our Wisconsin Supreme Court: Milwaukee Journal Sentinel, et al. v. City of Milwaukee, et al., No. 2011AP1112. The issue is whether a requester must pay the cost of redacting a public record when a governmental body decides that parts of the record cannot or should not be released. Milwaukee Journal Sentinel involves a newspaper's request to the Milwaukee Police Department (MPD) for dispatch records and incident reports. MPD asked the newspaper to prepay the redacting costs before release. The newspaper challenged the request in Milwaukee County Circuit Court, which agreed with MPD. The case is now before the Wisconsin Supreme Court.
Redaction costs have been an issue for years. The Public Records Law allows records custodians to charge for copying, postage, and certain other costs of complying with public records requests but is silent on redaction. Questions about redaction costs arose shortly after the law was enacted and, in 1982, then-Attorney General Bronson La Follette opined that they could not be charged. Our supreme court has not directly addressed redaction costs but has stated more generally that a records custodian may recoup all of its actual costs for responding to a public records request.
My office has obtained permission from the Wisconsin Supreme Court to file a “friend of the court” brief in Milwaukee Journal Sentinel. We will argue that the Public Records Law does not authorize charging for redaction costs. It is the Legislature's province -- not the Court's -- to determine what costs may be charged to public records requesters, and if the Legislature considers the issue of redaction costs, it should formulate a solution that balances the interests of government and requesters.
There is no question that the cost of redacting records can be a significant burden on governmental agencies. As the volume and complexity of records maintained by many units of government has increased since 1982, so, too, has the magnitude of redaction costs. For larger governmental units, redaction of records may consume thousands of hours of employee time, and tens of thousands of dollars each year. These duties are mostly performed by employees with other responsibilities and, during tight budget times, most governmental bodies are already understaffed.
Although I recognize the cost and burdens of public records compliance, charging for redactions costs should not be allowed absent clear and specific direction from the Legislature. Responding to public records requests and providing openness are important governmental functions that the public already pays for through tax levies. If requestors are required to pay the cost of redaction, it sends a message that public records compliance is something other than a core governmental function and something less than a statutory right.
At the Department of Justice, we take our public information mission seriously. Each fall, our legal experts speak at free seminars around the state to promote understanding of the Public Records Law and Open Meetings Law. Year round, our experts answer questions and provide information about the Public Records Law and Open Meetings Law. Anyone with questions about these laws may call (608) 266-3952, leave a message, and receive a return call from one of our public records or open meetings attorneys. Written inquiries also may be sent to me at Post Office Box 7857, Madison, WI 53707-7857.
Another invaluable Department of Justice resource is the Public Records Law and Open Meetings Law reference section of our website, www.doj.state.wi.us. Anyone may view, print, or download these resources free of charge at any time. Look for the “Open Meetings & Public Records” box on our home page. I encourage anyone interested in open government to use these resources and to contact the Department of Justice when we can be of assistance.
This column originally appeared on the Wisconsin Department of Justice web site.