Employee Requests for Records

Report
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Claire Dalle Molle
Office of Legal Affairs
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"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.
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"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
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"Requester" means any person who requests
inspection or copies of a record
“Personally identifiable information” is
information that can be associated with a
particular individual through one or more
identifiers or other information or
circumstances
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Public records law
◦ Wis. Stat. §§ 19.31-19.39
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Case Law
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Other law depending on circumstances
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General Rule: any requester has a right to
inspect any record
◦ In addition to the general rule, a requester has a
right to inspect any personally identifiable
information pertaining to the individual in a record
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Form of request?
◦ Request may be oral or in writing
◦ Request must be reasonably specific
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What type of record?
◦ Any employee has the same right as any other
person to receive records under the public record
law
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Can employee’s rep get the records?
◦ The individual may authorize any person to get the
record
◦ Does not need to be for a grievance or other
proceeding
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What can employee get?
◦ Not just own personnel records, any records
otherwise releasable
◦ Employee has enhanced right to own record
◦ The purpose of giving an individual greater access
to records under Wis. Stat.§ 19.35(1)(am) is so that
the individual can determine what information is
being maintained, and whether that information is
accurate. Hempel v. City of Baraboo, 2005 WI 120
◦ May also need to consider the right to inspect
under Wis. Stat. 103.13
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How often must employer fulfill the request?
◦ As often as requests are made- there is no limit
◦ But, there are bases for denial. Employer must
respond to the request by either fulfilling or
denying
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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
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Can employer deny request?
◦ Only if there is a statutory exception
◦ Still no traditional balancing test
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How do you determine if employee can have
the record?
◦ Look for general right of access
◦ Look for specific right of access
◦ Look to exceptions (collected or maintained in
connection with a circumstance that may lead to an
enforcement action, administrative proceeding,
arbitration proceeding or court proceeding)
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Duty to Notify Persons Named in Records
◦ Notice must be provided to “any record subject to
whom the record pertains.” Wis. Stat. § 19.356(2)(a)
◦ When the record contains information relating to an
employee created or kept by an authority as a result
of an investigation into a disciplinary matter or law
violation
◦ For notification requirement to kick in, the record
subject must a focus or target of the requested
record.
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Can an employer charge for the requested
records?
◦ Yes, but only the actual, necessary, and direct cost
of producing the records
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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

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