Public Records Law – Redaction Costs

Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, on bypass; case activity

¶1   Once again this court is asked to interpret the Wisconsin Public Records Law, Wis. Stat. §§ 19.31-.39 (2009-10).[1]  The issue presented is whether an authority[2] may impose a fee on a requester of a public record for the actual, necessary, and direct costs incurred by the authority (including staff time) of deleting nondisclosable information included within the responsive records.[3]  We conclude that it may not.[4]

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¶33  The language of Wis. Stat. § 19.35(3) is not particularly complex.  The legislature provided four tasks for which an authority may impose fees on a requester: “reproduction and transcription,” “photographing and photographic processing,” “locating,” and “mailing or shipping.”  For each task, an authority is permitted to impose a fee that does not exceed the “actual, necessary and direct” cost of the task.  The process of redacting information from a record does not fit into any of the four statutory tasks.

A 4-justice concurrence (representing a majority) signs on to the result quoted above, but expresses concern about resultant taxpayer costs, and urges legislative correction:

¶83  Fundamentally, this case implicates public policy choices:  whether taxpayers or record requesters should bear the financial burden of statutory record separations, and whether the costs associated with voluminous record requests should be addressed in a manner different from that employed for requests of only a few public records.  Therefore, although I am aware of and concerned for the significant costs and personnel deployments that voluminous record requests can impose on custodial authorities who are subject to public record requests and who may be operating with diminished revenues and personnel, addressing those concerns is a legislative function, not a function properly undertaken by the courts.  Accordingly, I respectfully concur.