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Thread: Wisconsin Open Records Law

  1. #1
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    http://www.doj.state.wi.us/dls/2008-...ec_Outline.pdf


    Interesting notes:


    Requests do not have to be in writing
    . Wis. Stat. § 19.35(1)(h).


    B.
    The requester generally does not have to identify himself or herself. Wis. Stat.


    § 19.35(1)(i).
    Caution: Certain substantive statutes, such as those concerning


    student records and health records, may restrict record access to specified persons.


    When records of that nature are the subject of a public records request, the custodian


    should confirm before releasing the records that the requester is someone statutorily


    authorized to obtain the requested records.
    See Wis. Stat. § 19.35(1)(i) for other


    limited circumstances in which a requester may be required to show identification.


    C.
    The requester does not need to state the purpose of the request. Wis. Stat.


    § 19.35(1)(h) and (i).




    “Magic words” are not required.




    1. A request which reasonably describes the information or record requested is


    sufficient. Wis. Stat. § 19.35(1)(h).


    2. A request, reasonably construed, triggers the statutory requirement to


    respond. For example, a request made under the “Freedom of Information


    Act” should be interpreted as being made under Wisconsin public records


    law.
    See ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶ 23,


    259 Wis. 2d 276, ¶ 23, 655 N.W.2d 510, ¶ 23.




    VII. The Response to the Request.




    A.
    Mandatory. The custodian must respond to a public records request. ECO, 2002


    WI App 302, ¶¶ 13-14, 259 Wis. 2d 276, ¶¶ 13-14, 655 N.W.2d 510, ¶¶ 13-14.

    - 13 -

    B.
    Timing. Response must be provided “as soon as practicable and without delay.”

    Wis. Stat. § 19.35(4)(a).

    1. The public records law does not require response within any specific time,

    such as “two weeks” or “48 hours.”

    2. DOJ policy is that ten working days is generally a reasonable time for

    response responding to a simple request for a limited number of easily

    identifiable records. For requests that are broader in scope, or that require

    location, review or redaction of many documents, a reasonable time for

    responding may be longer. However, if a response cannot be provided

    within ten working days, it is DOJ’s practice to send a communication

    indicating that a response is being prepared.

    3. 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 the authority to process the request, the extent of the request,

    and related considerations. Whether an authority is acting with reasonable

    diligence in responding to a particular request will depend on the totalityof circumstances surrounding that request.
    WIREdata II, 2008 WI 69,

    ¶ 56, ___ Wis. 2d ___, ¶ 56, 751 N.W.2d 736, ¶ 56.

    4. Requests for public records should be given high priority.

    5. Compliance at some unspecified future time is not authorized by the

    public records law. The custodian has two choices: comply or deny.

    WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 457-58, 555 N.W.2d 140, 142

    (Ct. App. 1996).

    6. An authority should not be subjected to the burden and expense of a

    premature public records lawsuit while it is attempting in good faith to

    respond, or to determine how to respond, to a public records request.

    WIREdata II, 2008 WI 69, ¶ 56, ___ Wis. 2d ___, ¶ 56, 751 N.W.2d 736,

    ¶ 56.

    7. An arbitrary and capricious delay or denial exposes the custodian to punitive

    damages and a $1,000.00 forfeiture. Wis. Stat. § 19.37.
    See Section XIII.,

    below.

    C.
    Format. If the request is in writing, a denial or partial denial of access also must be

    in writing. Wis. Stat. § 19.35(4)(b).

    - 14 -

  2. #2
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    I haven't received a response from the City of St. Francis. (regarding letter sent to businesses after the AG memo) It has been 2 weeks. I emailed them again today.
    I have not received a response to my open records request.

    Wisconsin law requires that you respond to this request. The Department of
    Justice has a policy of responding to requests within 10 days. It has been 10
    working days since I made this request. Wisconsin law provides for punitive
    damages and $1,000 forfeiture for failing to comply with an open records
    request.


    7. An arbitrary and capricious delay or denial exposes the custodian to punitive
    damages and a $1,000.00 forfeiture. Wis. Stat. § 19.37. See Section XIII.,

    Please acknowledge receipt of this email and comply with the open records
    request.


    ---- wrote:
    > Good Afternoon Shane,
    >
    > Under wisconsins Open Records statute I would like to request a copy of any
    letters/memo's sent to St. Francis businesses since the Attorney Generals April
    20th Memorandum regarding Open Carry in the state of Wisconsin. Specifically I
    am aware that Value Village received a letter from the St. Francis Police
    Department. I would like to obtain a copy of that letter and any other
    letters/memo's sent regarding Open Carry or firearms regulations since April
    20th.
    >
    > Those letters may be emailed as attachments to this email address.
    >
    > Thank-you for your help,
    >
    >
    >

  3. #3
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    still no response from my open records request and subsequent follow up request of the St. Francis Police Department for a copy of the letter that was mailed around to all businesses.

    I contacted the Attorney Generals office today and am awaiting a return phone call regarding what my recourse is since my request has been completely ignored.



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    Hmmm, Maybe they have something to hide.

    Do you think a letter was sent to businesses in Waukesha as well?

  5. #5
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    Spoke with an attorney at the Dept. of Justice. They said my only other recourse is to file a suit against the city of St. Francis. She said I could ask the DA or the DOJ, but she told me it would be unlikely they'd allocate resources to it.

    I have another idea, I'm going to give it a shot and see. We'll report back shortly.

  6. #6
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    From: Brian Kaebisch
    Sent: Thursday, April 23, 2009 2:22 PM
    To: Advanced Hydraulics; Advanced Screw; Airport Animal Hospital; American Family, Mark VanEngen Agency; Andane Fitness; Apollo Machining; Appearances, Inc; ARG Machining Corp; Arylins KK Coin Laundry; Associated Global Systems; Badger Metal; Bayview Railing and Ornamental; Bella Grace Tanning Salon; Briggs Woodworking; Cake Lady & Petite Pastries; Carleton Grange Pub; Corporate Limousine Service Inc; Cudahy Paper & Supply; Czar Machine & Welding; Dair Queen; Diamond Electric; Dowling Studios; Easterday Fluid; Fomation; Fontarome Chemical, Inc; Giemza Auto Repair; Greg's True Value; Hamilton Benchmark, Inc; Harbor Freight Tools; Howard Village; Impact Solutions; In Focus Photography; Intergrity Family Services; J & L Honing Co; Jaw Properties, LLC; Jim's Auto; King Case Co; Kitzinger Cooperage Corp; Lakeside Centerless Grinding Co; Lakeside Chiropractic; Layton Fruit Market; Lenard Tool & Machine, Inc; Lynne's Scizzory; Midwest Stairs & Iron Inc; Midwest Stairs & Iron Inc; Mike's Auto; Milwaukee Bucks; MJP Tool Corp; Nippon Express; Parkshore Condo; PDQ Tooling; Quality Candy/Buddy Squirrel; Quality Customs Brokers Inc; RD Image; Reflections Auto Body; Riverside Finance Inc; Shorty's Tavern; Sign & Design of Milwaukee, Inc; Sisters of St Francis of Assisi; South Shore Manor; St Francis Auto Wreckers; St Francis Dental Care; Standard Forwarding; Stark Investments; Supreme Meats; Suzy's Cream Cheesecakes; Tobacco City; Tropics Tanning Studio; TSM Delivery Inc; Value Village; Vern's Barber Shop; Webster Instruments; Wolf's Cleaners
    Subject: Open Carrying of Firearms



    April 23, 2009

    The Wisconsin Attorney General released an advisory memorandum that states under the Wisconsin Constitution, a person has the right to openly carry a firearm, subject to reasonable regulation. It's only unlawful in public buildings, schools and taverns.

    Therefore, a person could potentially enter your business while openly carrying a firearm, this in itself will not merit a disorderly conduct ticket, we suggestyou post the message thatcustomers are not allowed to carry firearms into your building or the police will be contacted. This will allow us to pursue criminal trespassing charges against any potential violators upon your request. As always, please call us with any concerns for your safety or the customers welfare whether you post this warning or not.

    I suggest you contact your legal counsel for confirmation of the above or further guidance in this matter.


    Sincerely,


    Brian E. Kaebisch
    Chief of Police

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    Nice. He didn't even both to mention that it was entirely optional and their not doing so would have no impact on the service that they receive from his office. Nor did he mention that all they had to do was request that a person leave and they could get the same criminal tresspass service. This email deserves some air time.
    Ecclesiastes 10:2 - "A wise man's heart inclines him to the right, but the fool's heart to the left."

  8. #8
    Regular Member AaronS's Avatar
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    I am thinking a lawyer should take a look at this. I, more then ever, feelthat it was an attempt to confuse, and misinform the people this letter was sent out to. I also wonder how this letter was paid for. I think the letter has crossed that line again. I am also thinking that our next picnic should be in that area.

  9. #9
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    Yeah, it seems very leading. Intimating that if you don't post the sign, they can't pursue trespassing charges. (which they still could, but only if you don't leave when asked)
    we suggestyou post the message thatcustomers are not allowed to carry firearms into your building or the police will be contacted. This will allow us to pursue criminal trespassing charges against any potential violators upon your request
    And then kinda covers himself by the comment:
    As always, please call us with any concerns for your safety or the customers welfare whether you post this warning or not.

    I suggest you contact your legal counsel for confirmation of the above
    Or non-confirmation of the above. (insert eye roll here)

    Just another example of the mindset of law-enforcement. Not unlike South Milwaukee. Its not the businesses clamoring for more "leverage" against law-abiding citizens, its the police departments that want more 'arrest now ask questions later' capability.


  10. #10
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    I, more then ever, feelthat it was an attempt to confuse, and misinform the people this letter was sent out to.
    Its clear to me that it DID confuse. (after talking with the manager at Value Village who said "we didn't want to but the police told us we had to")

    Having said that, I think that people with our bias/perception are 100% going to read the letter as misleading/making stores think they have to post signs while people with an anti-gun bias/perception will think its perfectly a-ok what he sent.

    Those truly objective who don't know and don't care will just read the letter and shrug. I just don't think there is a "smoking gun".

    I strongly suspect the police chief hadn't received a single call from a business owner (i mean heck look at the date, its only a couple days after the memo) but you know he'll say something like "hey businesses were calling me asking what they should do to keep people from carrying in the store"



  11. #11
    Founder's Club Member protias's Avatar
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    hugh jarmis wrote:
    I, more then ever, feelthat it was an attempt to confuse, and misinform the people this letter was sent out to.
    Its clear to me that it DID confuse. (after talking with the manager at Value Village who said "we didn't want to but the police told us we had to")

    Having said that, I think that people with our bias/perception are 100% going to read the letter as misleading/making stores think they have to post signs while people with an anti-gun bias/perception will think its perfectly a-ok what he sent.

    Those truly objective who don't know and don't care will just read the letter and shrug. I just don't think there is a "smoking gun".

    I strongly suspect the police chief hadn't received a single call from a business owner (i mean heck look at the date, its only a couple days after the memo) but you know he'll say something like "hey businesses were calling me asking what they should do to keep people from carrying in the store"

    I hope said businesses post signs welcoming OC people. That would definitely be a sight to see.
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

  12. #12
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    hugh jarmis wrote:
    Spoke with an attorney at the Dept. of Justice. They said my only other recourse is to file a suit against the city of St. Francis. She said I could ask the DA or the DOJ, but she told me it would be unlikely they'd allocate resources to it.

    I have another idea, I'm going to give it a shot and see. We'll report back shortly.
    Your idea seemed to work extremely well; care to share the magic?

    Dave

    Dave
    45ACP-For when you care enough to send the very best-
    Fight for "Stand Your Ground " legislation!

    WI DA Gerald R. Fox:
    "These so-called 'public safety' laws only put decent law-abiding citizens at a dangerous disadvantage when it comes to their personal safety, and I for one am glad that this decades-long era of defective thinking on gun issues is over..."

    Remember: Don't make old People mad. We don't like being old in the first place, so it doesn't take much to piss us off.

  13. #13
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    davegran wrote:
    hugh jarmis wrote:
    Spoke with an attorney at the Dept. of Justice. They said my only other recourse is to file a suit against the city of St. Francis. She said I could ask the DA or the DOJ, but she told me it would be unlikely they'd allocate resources to it.

    I have another idea, I'm going to give it a shot and see. We'll report back shortly.
    Your idea seemed to work extremely well; care to share the magic?

    Dave

    yeah, call a friend at channel 4 and have them make a phone call for you.

  14. #14
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    I wonder if theSouth Milwaukee chief isgoing to ask for more cops because people are taking responsibility for protecting themselves. Do the store owners know that the South Milwaukee Police Department have no legal obligation to protect them?

    http://www.sacbee.com/topstories/story/2020626.html
    When in danger you can dial 911 and hope for the police to arrive a few minutes later armed with guns.
    Why do police carry guns?

    The Joyce Foundation funded firearm control empire:
    http://upload.wikimedia.org/wikipedi...lFundingR1.png

    "Everything that we see is a shadow cast by that which we do not see." - Martin Luther King Jr.

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    hugh jarmis wrote:
    you know he'll say something like "hey businesses were calling me asking what they should do to keep people from carrying in the store"

    Yes he may say that but that information would be available through open records as well.

    maybe a copy of this should be sent to the AG's office.

  16. #16
    Regular Member davegran's Avatar
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    hugh jarmis wrote:
    davegran wrote:
    hugh jarmis wrote:
    Spoke with an attorney at the Dept. of Justice. They said my only other recourse is to file a suit against the city of St. Francis. She said I could ask the DA or the DOJ, but she told me it would be unlikely they'd allocate resources to it.

    I have another idea, I'm going to give it a shot and see. We'll report back shortly.
    Your idea seemed to work extremely well; care to share the magic?
    Dave
    yeah, call a friend at channel 4 and have them make a phone call for you.
    Just a guess, but I'd say your friend at channel 4 probably doesn't clean the toilets there....

    Dave

    Dave
    45ACP-For when you care enough to send the very best-
    Fight for "Stand Your Ground " legislation!

    WI DA Gerald R. Fox:
    "These so-called 'public safety' laws only put decent law-abiding citizens at a dangerous disadvantage when it comes to their personal safety, and I for one am glad that this decades-long era of defective thinking on gun issues is over..."

    Remember: Don't make old People mad. We don't like being old in the first place, so it doesn't take much to piss us off.

  17. #17
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    The rest of the story.

    19.37 Enforcement and penalties. (1) MANDAMUS. If an
    authority withholds a record or a part of a record or delays granting
    access to a record or part of a record after a written request for disclosure
    is made, the requester may pursue either, or both, of the
    alternatives under pars. (a) and (b).

    (a) The requester may bring an action for mandamus asking a
    court to order release of the record. The court may permit the parties
    or their attorneys to have access to the requested record under
    restrictions or protective orders as the court deems appropriate.

    (b) The requester may, in writing, request the district attorney
    of the county where the record is found, or request the attorney
    general, to bring an action for mandamus asking a court to order
    release of the record to the requester. The district attorney or attorney
    general may bring such an action.

    (1m) TIME FOR COMMENCING ACTION. No action for mandamus
    under sub. (1) to challenge the denial of a request for access
    to a record or part of a record may be commenced by any committed
    or incarcerated person later than 90 days after the date that
    the request is denied by the authority having custody of the record
    or part of the record.

    (1n) NOTICE OF CLAIM. Sections 893.80 and 893.82 do not
    apply to actions commenced under this section.

    (2) COSTS, FEES AND DAMAGES. (a) Except as provided in this
    paragraph, the court shall award reasonable attorney fees, damages
    of not less than $100, and other actual costs to the requester
    if the requester prevails in whole or in substantial part in any
    action filed under sub. (1) relating to access to a record or part of
    a record under s. 19.35 (1) (a). If the requester is a committed or
    incarcerated person, the requester is not entitled to any minimum
    amount of damages, but the court may award damages. Costs and
    fees shall be paid by the authority affected or the unit of government
    of which it is a part, or by the unit of government by which
    the legal custodian under s. 19.33 is employed and may not
    become a personal liability of any public official.

    (b) In any action filed under sub. (1) relating to access to a
    record or part of a record under s. 19.35 (1) (am), if the court finds
    that the authority acted in a willful or intentional manner, the court
    shall award the individual actual damages sustained by the individual
    as a consequence of the failure.

    (3) PUNITIVE DAMAGES. If a court finds that an authority or
    legal custodian under s. 19.33 has arbitrarily and capriciously
    denied or delayed response to a request or charged excessive fees,
    the court may award punitive damages to the requester.

    (4) PENALTY. Any authority which or legal custodian under s.
    19.33 who arbitrarily and capriciously denies or delays response
    to a request or charges excessive fees may be required to forfeit
    not more than $1,000. Forfeitures under this section shall be
    enforced by action on behalf of the state by the attorney general
    or by the district attorney of any county where a violation occurs.
    In actions brought by the attorney general, the court shall award
    any forfeiture recovered together with reasonable costs to the
    state; and in actions brought by the district attorney, the court shall
    award any forfeiture recovered together with reasonable costs to
    the county.

    History: 1981 c. 335, 391; 1991 a. 269 s. 43d; 1995 a. 158; 1997 a. 94.

    A party seeking fees under sub. (2) must show that the prosecution of an action
    could reasonably be regarded as necessary to obtain the information and that a “causal nexus” exists between that action and the agency’s surrender of the information. State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 422 N.W.2d 898 (Ct. App. 1988).

    If an agency exercises due diligence but is unable to respond timely to a records
    request, the plaintiff must show that a mandamus action was necessary to secure the records release to qualify for award of fees and costs under sub. (2). Racine Education Association. v. Racine Board of Education, 145 Wis. 2d 518, 427 N.W.2d 414 (Ct. App. 1988).

    Assuming sub. (1) (a) applies before mandamus is issued, the trial court retains discretion to refuse counsel’s participation in an in camera inspection. Milwaukee Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Ct. App. 1989).

    If the trial court has an incomplete knowledge of the contents of the public records
    sought, it must conduct an in camera inspection to determine what may be disclosed
    following a custodian’s refusal. State ex rel. Morke v. Donnelly, 155 Wis. 2d 521, 455
    N.W.2d 893 (1990).

    A pro se litigant is not entitled to attorney fees. State ex rel. Young v. Shaw, 165
    Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991).

    A favorable judgment or order is not a necessary condition precedent for finding
    that a party prevailed against an agency under sub. (2). A causal nexus must be shown between the prosecution of the mandamus action and the release of the requested information. Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154, 499 N.W.2d 918 (Ct. App. 1993).

    Actions brought under the open meetings and open records laws are exempt from
    the notice provisions of s. 893.80 (1). Auchinleck v. Town of LaGrange, 200 Wis.
    2d 585, 547 N.W.2d 587 (1996), 94−2809.

    An inmate’s right to mandamus under this section is subject to s. 801.02 (7), which
    requires exhaustion of administrative remedies before an action may be commenced.
    Moore v. Stahowiak, 212 Wis. 2d 744, 569 N.W.2d 711 (Ct. App. 1997), 96−2547.

    When requests are complex, municipalities should be afforded reasonable latitude
    in time for their responses. An authority should not be subjected to the burden and
    expense of a premature public records lawsuit while it is attempting in good faith to
    respond, or to determine how to respond, to a request. What constitutes a reasonable time for a response by an authority depends on the nature of the request, the staff and other resources available to the authority to process the request, the extent of the request, and other related considerations. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, 05−1473.

    The legislature did not intend to allow a record requester to control or appeal a mandamus action brought by the attorney general under sub. (1) (b). Sub. (1) outlines two distinct courses of action when a records request is denied, dictates distinct courses of action, and prescribes different remedies for each course. Nothing suggests that a requester is hiring the attorney general as a sort of private counsel to proceed with the case, or that the requester would be a named plaintiff in the case with the attorney general appearing as counsel of record when proceeding under sub. (1) (b). State v. Zien, 2008 WI App 153, 314 Wis. 2d 340, 761 N.W.2d 15, 07−1930.

    Actual damages are the liability of the agency. Punitive damages and forfeitures
    can be the liability of either the agency or the legal custodian, or both. Section 895.46
    (1) (a) probably provides indemnification for punitive damages assessed against a
    custodian, but not for forfeitures. 72 Atty. Gen. 99.

    19.39 Interpretation by attorney general. Any person
    may request advice from the attorney general as to the applicability of this subchapter under any circumstances. The attorney general
    may respond to such a request.
    History: 1981 c. 335

  18. #18
    Founder's Club Member bnhcomputing's Avatar
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    I respectfully suggest, that OCDO send a similar email to all those listed on the one Nik acquired. Informing them that they do indeed have rights, that they do NOT need to post any sign, and that holstered weapons are not a danger.

    I would also submit, that a dictatorial policy sent to businesses, by police, should not be tolerated. One might contemplate filing a complaint with the police/fire commission or whatever body oversees the police department. Get this on PUBLIC RECORD that the police are "telling businesses how to run their business" and ask those in charge why they(LEO) are setting business policy.

    Just my $0.02



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