Government Entities Must Mail Records if Requested
Open record requests are a staple of our democratic principles as they help ensure an informed electorate and transparent government. Unfortunately, when government entities get open records requests, they have many tricks up their sleeve to try to avoid their statutorily-imposed duties. One way is to interpret your request so broadly that gathering the records would be “unduly burdensome”. Another is to interpret your request so narrowly that no records are responsive to it. Another is to charge excessive “locating” fees.
One roadblock I’ve run into recently is a government entity claiming that it had a “policy and practice” of requiring record requesters to come to the office personally to pick up or copy the records. This imposes a large burden on people who are working during the hours the government office is open and also on people who live or work far away.
It’s also illegal. Government entities cannot require a requester to come into the office to get a copy of a record except in the rare circumstance where it is not possible to copy the record. Wisconsin law provides plainly that “any requester has a right to inspect a record and to make or receive a copyof a record that permits photocopying.” Wis. Stat. 19.35(1)(b) (emphasis added). Decades ago, the law actually permitted the government to choose whether to provide a copy or require the requester to come in and copy it. In 1991, however, the legislature amended the law to remove that choice when a request is not made in person. State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523, 527, 549 N.W.2d 25 (Ct. App. 1996) (describing the legislative history and noting that “[b]y statute, [the custodian] was required to photocopy and send the material requested”).
Be aware, though, that the government entity can charge you the actual postage cost to mail the copies. Wis. Stat. 19.35(3)(d).
When the Education Action Group ran into this kind of excuse from a school district* in northern Wisconsin last week, they called us. We wrote a letter to the school district’s superintendent, and the very next day EAG got an email saying the records were in the mail.
Know your rights when it comes to open records! If you ever want some advice about how to file a record request, what to ask for, or whether the fees being charged are lawful, give us a call.
*Because the school district corrected its mistake immediately, we are not identifying it