Midwest Environmental Advocates, our partners and the general public rely constantly on records and other information from our government. The public has a right to know how government is spending taxpayer dollars and how elected officials are exercising power granted by the people. For all of these reasons, our state's open records and open meetings laws are designed to protect every citizen's right to access and transparency.
Below is a reference guide and FAQ on how Wisconsin's "Sunshine Laws" work and how citizens can exercise rights that are essential to a clean and open government.
Wisconsin’s Open Records and Open Meetings Laws
Open Records Law – Wisconsin Statutes sections 19.31-19.39
One of the strongest policy statements in Wisconsin’s statutes provides an intent to keep government open and accessible to the public.
“In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” Wis. Stat § 19.31.
What is a “record” subject to disclosure?
Any material on which written, drawn, printed, spoken, visual, or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. Wis. Stat. § 19.32(2).
There are exceptions, but they are construed narrowly. An example of some of the exceptions are:
- Drafts and notes (prepared for the originator’s use)
- Certain copyrighted, patented, or trade secret materials
- Certain records with personal information or employee information
- Records with confidential information subject to attorney-client privilege
- Records with attorney work product
An authority or governmental body is not required to create a record in response to an open records request, only to disclose existing records that are not exempt.
What is required for a request?
A request must be:
- Reasonably specific
- Sent to the authority (government official) that has custody of the record
A request DOES NOT need to:
- Take any particular form or even be in writing (note that some authorities such as the DNR provide forms for open records requests, but the forms are simply the preferred format, not required)
- Disclose the identity of the record requester
Who can make a request for records?
Any person can request a copy of or to inspect a record from an authority. Wis. Stat. § 19.32(3).
Who do you make the request to?
Requests must be made to the “authority” that has custody of the record. An authority is defined as any governmental entity or body, elected official, court, or quasi-governmental corporation. Wis. Stat. § 19.32(1).
What is an authority required to do when it receives an open records request?
The authority is required to:
- Respond to the open records request “as soon as practicable and without delay,” Wis. Stat. § 19.35(4)(a) (DOJ compliance guide indicates approximately 10 days is reasonable for a simple request),
- Presume that access to a record is allowed,
- Determine whether (1) the law provides an absolute right of access (because a statute or case law requires disclosure, (2) the law provides for absolute denial of access (because a statute or case law provides that an exception makes the document confidential), or (3) access must be determined by the balancing test.
If the authority determines that it may deny all or part of the record request, the authority must:
- Provide the denial in writing (if the request was made in writing),
- Include the specific reason for the denial,
- Provide a public policy reason for the denial (if the record is withheld following an application of the balancing test),
- Disclose any part of a record that is subject to disclosure (even if it is necessary to redact part of a document not subject to disclosure),
- If the reason for the denial is that no responsive records exist, indicate as much in the denial,
- Inform the requester that denial is subject to review in court or by application to the district attorney or Attorney General.
Can an authority charge fees for fulfilling the request?
Yes. But an authority may only charge the fees authorized by the Open Records Law, which include fees for copying and transcription costs, photography reproduction costs, location costs, or mailing costs.
A record custodian may not charge fees for costs associated with redacting confidential information from responsive records. A record custodian also may not charge more than “the actual, necessary, and direct cost” of reproduction or transcription.
What can I do if I’ve made a request but the authority isn’t responding or withheld documents that I think should be public?
If an authority withholds a record, delays access, or charges unauthorized fees, the requester may:
- Submit a written request to the district attorney of the county where the record is located or the state Attorney General requesting an action to enforce the Open Records Law
- Bring an action for mandamus in court to obtain the record
A requester who substantially prevails in a mandamus action may obtain attorneys fees and costs from the authority if the requester first asked the district attorney or Attorney General to enforce the Open Records Law.
**For more detailed information see the Wisconsin Department of Justice’s comprehensive Open Records Law Compliance Outline**
Open Meetings Law – Wisconsin Statutes sections 19.81-19.98
The Open Meetings Law requires every “meeting” of a “governmental body” to be publicly noticed and open to the public (subject to limited exceptions for closed sessions). Wis. Stat. § 19.83.
What constitutes a meeting?
A meeting is the convening of all or some members of a governmental entity “for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body.” Wis. Stat. § 19.82(2). A gathering constitutes a meeting when (1) the purpose is to engage in governmental business, and (2) there are enough members present to determine the governmental body’s course of action.
If this test is met, the convening of members is a meeting even if it takes the form of a casual gathering, a phone call, email correspondence, or a series of smaller meetings. If one-half or more of the members of a governmental body are present at a gathering, the law presumes it is a “meeting.” Wis. Stat. § 19.82(2).
If the Open Meetings Law applies, what is required of the governmental body?
Gatherings subject to the Open Meetings Law must be (1) preceded by at least 24-hours notice (generally), and (2) conducted in an open session unless one of the limited exemptions applies. Wis. Stat. § 19.83.
The public notice of a meeting must provide the “time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session.” The public notice must be “in such form as is reasonably likely to apprise” the public and media of the meeting. Wis. Stat. § 19.84(2).
What does it mean that a meeting must be open to the public?
Gatherings subject to the Open Meetings Law must be “held in places reasonably accessible to members of the public and shall be open to all citizens at all times.” Wis. Stat § 19.81(2). The meeting must be held (1) near to where the public served is located, (2) generally in a public building, and (3) in a room reasonably large enough to accommodate all citizens who wish to attend the meetings.
While the meeting must be open and accessible to the public, the Open Meetings Law does not provide a right to participate in meetings, only to observe.
What if a governmental body plans to take up matters in a closed session?
If a governmental body plans to hold a closed session, the public notice of the meeting must provide the subject matter that will be taken up in closed session. The notice must include “enough information for the public to discern whether the subject matter is authorized for closed session under section 19.85(1).” Buswell, 301 Wis. 2d 178, ¶ 37 n.7. An Attorney General opinion provides that the notice must include (1) the exemption under which the closed session is authorized, and (2) the specific nature of the business. It is not enough for the notice to identify and quote from the statutory exemption. The governmental authority must identify in the notice the particular subject that might be taken up.
Matters that may be taken up in closed session are described in Wis. Stat. § 19.85, and further detail regarding permissible closed sessions is contained in the DOJ’s Open Meetings Law Compliance Outline.
What can I do if I believe that a governmental body did not comply with the Open Meetings Law?
The Attorney General or district attorney (following a citizen complaint) may bring an action to enforce the Open Meetings Law. If the district attorney fails to act within twenty days after receiving a complaint, the individual filing the complaint may bring an action to enforce the Open Meetings Law in the name of the state. Wis. Stat. § 19.97(4). Any member who is found to have “knowingly” violated the Open Meetings Law is subject to penalties. A court may also void an action taken in violation of the Open Meetings Law if the court concludes that the interest in enforcing the law outweighs the interest in maintaining the action taken in violation of the law. Wis. Stat. § 19.97(3).
**For more detailed information see the Wisconsin Department of Justice’s comprehensive Open Meetings Law Compliance Outline**