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Published: February 1, 2007
Author: Jodi Yin
In response to the thousands of requests for public records that are made in Wisconsin each year, many of the state’s municipalities regularly produce documents in hard copy and/or in PDF format. A recent appellate court decision, WIREdata, Inc. v. Village of Sussex and Village of Sussex Custodian, warns municipalities against this practice when responding to a request for raw electronic data. This decision makes it clear that municipalities may be violating the state’s open records law when responding to open records requests with electronic data in PDF format. Furthermore, when it comes to a violation of Wisconsin’s open records law, the buck stops with the municipalities.
The plaintiffs (“WIREdata”) in WIREdata, Inc. v. Village of Sussex and Village of Sussex Custodian filed open records requests with three municipalities in April of 2001, seeking detailed real estate assessment records in the same format created and maintained by the municipalities’ independent contractor assessors. In each case, the municipality’s assessor inputted raw data regarding property appraisals into a computer software program, called Market Drive, which was developed and copyrighted by Assessment Technologies of WI, LLC. Each municipality had licensing privileges for read-only access of the Market Drive software.
In response to WIREdata’s open records requests, all three municipalities referred WIREdata to the assessor and/or the private computer programming firm hired by Assessment Technologies to program the Market Drive software. WIREdata was then told that accessing the requested information would be time-consuming, difficult, and costly. Additional information was requested from WIREdata before the records could be produced.
Less than two months after submitting its initial open records requests, WIREdata filed three separate mandamus actions against the municipalities, appraisers, and software developer. Each of the trial courts’ decisions was appealed. At issue on appeal was: (1) whether the municipalities and their independent contractor assessors were responsible statutory authorities under the open records law; (2) whether WIREdata submitted valid open records requests; (3) whether the municipalities denied WIREdata’s open records requests; (4) whether the municipalities complied with the open records law by providing the records in PDF format; and (5) whether the imposition of costs and attorney’s fees on the assessor and software developer was appropriate.
The court ultimately held that “where the open records aw is concerned, the buck stops with the municipalities.” The municipalities - not the independent contractors - are the responsible authorities under Wisconsin’s open records law, and each municipality violated the law when it delayed and, effectively, denied WIREdata’s valid requests for access to “source material” contained on these databases. The court explained that source material includes data as it is inputted by the assessors and stored in the database, regardless of its physical form or characteristics. PDF files did not provide this source material because assessors did not input data into or maintain assessments records in PDF. Instead, the municipalities should have produced the raw data used by assessors for WIREdata’s inspection and copying. The municipalities’ failure to provide this source material in the proper format subjected each to attorney’s fees and costs.
The WIREdata decision serves as a cautionary tale for all of Wisconsin’s municipalities. While not every open records request will require production of raw electronic data, the WIREdata decision reveals that municipalities must be prepared to effectively and efficiently respond to open records requests by producing raw data that resembles the information the public might have accessed prior to the dawn of the computer era. This requires municipalities to structure its contracts and licensing agreements with independent contractors to allow for quick access of public records in a wide range of databases.
Jodi S. Yin is an attorney with Axley Brynelson, LLP. For more information, contact Ms. Yin at 608.283.6781 or jyin@axley.com.
This article was featured in the February 2007 issue of the Wisconsin Insurance Law Alert (WILA). The WILA is a quarterly newsletter written by a team of Insurance Defense Attorneys at Axley Brynelson, LLP. Since 1885, Axley Brynelson, LLP has been a leading insurance defense law firm in Wisconsin.
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