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Local Governments and School Districts Blog

Disclosing Notes Under Wisconsin’s Public Records Law

Authored by Ruder Ware Attorneys
Posted on June 15, 2015
Filed under Local Governments and School Districts

The Wisconsin Court of Appeals recently clarified when notes are subject to disclosure under Wisconsin’s Public Records law.  In The Voice of Wisconsin Rapids, LLC, et. al. v. Wisconsin Public School District, et. al., 2014 AP 2015 (Ct. App., 2015), the appellate court affirmed the circuit court’s finding that employee notes from a school district’s investigation regarding alleged impropriety within the school’s athletic program are not records subject to disclosure in a public records request under Wisconsin Statute.

There is a presumption that public records shall be open to the public.  §19.31, Wis. Stat.  The term “record” is broadly defined and includes any material on which written or printed information is made or is being kept by a public authority, including handwritten data.  §19.32(2), Wis. Stat.   However, the statute also states that “record” does not include notes prepared by the originator for personal use.  §19.32(2), Wis. Stat.  The term “notes” is not otherwise clearly or independently defined by statute.

In this case, the Court of Appeals inspected the sealed records and determined the notes in question were prepared by school district employees as part of their own personal note-taking process before and after interviews they conducted as part of the investigation.  The court characterized these as mostly handwritten and that they appeared to reflect hurried, fragmentary, and informal writing.  The court stated that the term “notes” is not defined in the statute and, therefore, gave it a very broad meaning.  It likened the term to the ordinary meaning of notes, including an informal record, for any purpose, especially one written down to aid the writer’s memory of things said and done.

The Court of Appeals also referenced an opinion by the Wisconsin Attorney General and stated that notes become subject to disclosure if they are distributed to others for the purpose of communicating information or are retained for the purpose of memorializing an activity.  In these situations, the court stated, such notes would go beyond personal use and lose their exemption.  In this case, there was no evidence the notes at issue were ever distributed.  Further, the court observed, the notes have “the appearance of fragmentary notations of the type commonly created by people when they anticipate being the only users of the notes” and others would not be able to determine the meaning of the notes without a detailed interpretation by their creators.  The court further acknowledged the mere fact that notes have the potential for distribution to others does not deprive the notes of their personal-use nature.            

This case provides further understanding and definition to local authorities of when notes should be disclosed as a part of a public records request.  Although there is a presumption that public records are open to the public upon request, notes are exempt from such requests when created for personal use and not shared.  Therefore, public officials should be cautious when responding to public records requests for documents that might include personal notes.