Workplace Investigation - University Archives & Records Management
Claire Dalle Molle University Legal Counsel UW-Madison April 15, 2015 "Authority" means any of the following having custody of a record: a state or local office…department or public body corporate and politic created by the constitution or by any law, ordinance, rule or order "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, which has been created or is being kept by an authority. Includes contractor records. "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 which are purely personal property; or materials to which access is limited by copyright, patent or bequest "Requester" means any person who requests inspection or copies of a record “Legal custodian” means the person vested by the authority with full legal power to render decisions and carry out the authority’s statutory public records responsibilities Public records law ◦ Wis. Stat. §§ 19.31-19.39 Case Law Other substantive statutes and regulations Attorney General Opinions The policy: “…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…Further, providing persons with such information is declared to be…an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. [The law] shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business.” General Rule: any requester has a right to inspect any record ◦ In addition to the general rule, a requester has an enhanced right to inspect any personally identifiable information pertaining to the individual in a record Form of request? ◦ Request may be oral or in writing ◦ Request must be reasonably specific Does the requester have to identify themselves? ◦ No, a requester generally does not have to identify themselves or state the purpose of their request ◦ Some substantive statutes restrict access of certain records to certain people Must an authority respond to a records request? ◦ Yes, an authority must respond to a public records request by either complying with or denying the request How often must an authority fulfill a records request? ◦ As often as requests are made- there is no limit ◦ But, there are bases for denial of the request Is there a timeline for responding to request? ◦ As soon as is practicable and without delay ◦ “what constitutes a reasonable time for a response to any specific request depends on the nature of the request, the staff and other resources available to process the request, the extent of the request and other related circumstances.” WIREdata, Inc. v. Village of Sussex Can a request be denied? ◦ Yes, for appropriate reasons Request itself is insufficient Statutory exceptions Balancing test Denial of a request ◦ Sufficiency of Request A request is sufficient if it is directed at an authority and reasonably describes the records or information requested. Seifert, 2007 WI App 207, ¶ 39, 305 Wis. 2d 582, ¶ 39, 740 N.W.2d 177,¶ 39 No magic words Denial of a request ◦ Insufficient Request A request must be reasonably specific as to the subject matter and length of time involved. If it is not, it is not a sufficient request. The purpose of the time and subject matter limitations is to prevent unreasonably burdening a records custodian. A records custodian should not have to guess at what records a requester desires. Seifert, 2007 WI App 207, ¶ 42 Denial of a request ◦ Statutory exemptions “Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure [under the public records law].” Wis. Stat. § 19.36(1). Privacy laws and others Not as many direct statutory exemptions in this area Denial of a request ◦ Balancing test Must balance the strong public interest in disclosure of the record against the public interest favoring nondisclosure Determine whether the factual circumstances create an exception to the presumption of openness The private interest of a person not generally relevant Must give specific reasons Denial of a request ◦ Balancing test Examples Personally identifiable information of non-affiliated members of Animal Care and Use Committees. Inclusion of non-affiliated members (i.e. members of the public) on the Animal Care and Use Committees is necessary for compliance with federal law. Under the balancing test inherent in Wisconsin’s public records law, we have determined that the public interests in encouraging nonaffiliated members to serve on animal care and use committees, fulfilling federal requirements, and in preventing harassment of such members outweigh the negligible public interest in identifying specific nonaffiliated ACUC members. Denial of a Request ◦ Balancing test Examples Further, even when not explicitly protected by FERPA as an education record, the University has also redacted the names and other identifying information of any other students, prospective students or minors discussed in these records. While FERPA may not, by its specific terms, apply to these records as a whole, the University has performed the common law balancing test incorporated in the Wisconsin Public Records law and concluded that such redaction is appropriate. There is negligible public interest in identifying any of these individuals merely because they had some tangential contact with XXX or the assault victim. The University considered its education mission and responsibility to protect its students, prospective students, and other minors. Because the public policy behind FERPA –protecting the confidentiality of students, their identities, and records directly related to them— is strong, the greater weight of public interest is served by redacting identifying information from these documents. Mandamus language ◦ Wis. Stat. § 19.35(4)(b) states “if an authority denies a written request in whole or in part, the requester shall receive from the authority a written statement of the reasons for denying the written request…[and] shall inform the requester that…the determination is subject to review by mandamus under s. 19.37 (1) or upon application to the attorney general or a district attorney.” Mandamus language ◦ Full denial: “The University informs you that this denial of your request is subject to review by mandamus under Wis. Stat. § 19.37(1)(a) or by application to the attorney general or district attorney pursuant to Wis. Stat. § 19.37(1)(b).” ◦ Partial denial: “To the extent that that this could be considered a partial denial of your request, the University informs you that it is subject to review by mandamus under Wis. Stat. § 19.37(1)(a) or by application to the attorney general or district attorney pursuant to Wis. Stat. § 19.37(1)(b).” Can an authority charge for the requested records? ◦ Yes, but only the actual, necessary, and direct cost of producing the records ◦ Costs to copy ◦ Cost of a computer run ◦ Cost of time to search for or locate a record, if it is over $50 ◦ Prepayment may be required if the cost is $5 or more What is the penalty for failing to comply? Attorneys’ fees, damages of not less than $100.00, and other actual costs shall be awarded to a prevailing requester Sometimes punitive damages or civil forfeiture Other issues ◦ Not required to create a record not already in existence ◦ Records retention ◦ Not required to provide information Wisconsin Department of Justice Public Records Law Compliance Outline http://www.doj.state.wi.us/sites/default/files /dls/public-records-compliance-outline2012.pdf Office of Legal Affairs Public Records http://legal.wisc.edu/public-records.htm Lisa Hull, lhull@wisc.edu
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