The relationship between the Public Records Law and public record retention duties as well as the reasonableness of a records request were recently addressed by the Wisconsin Court of Appeals in State ex rel. Gehl v. Connors, Appeal No. 2006AP2455 (Wis. Ct. App. Oct., 18, 2007) (recommended for publication).
The case arose in response to public records requests in 2003 and 2004 by David Gehl to a number of Dane County officials. The requests related to a longstanding dispute between the requester and local officials and sought categories of documents for the period January 2000 to the time of the request.
In response to the initial 2003 requests, the County provided available documents but informed Gehl that email records prior to June 2002 were not available because they had been deleted. The County subsequently notified Gehl that some pre-June 2002 emails might be available from backup tapes that had not yet been overwritten and provided a few additional emails it located.
Gehl made a revised request in late 2004 that sought emails for the period November 1, 2000 through July 31, 2002 from different county officials. The requests contained up to forty-seven search terms. Each request covered more than thirty persons. The County responded that the request was without reasonable limitation as to subject matter as required by Wis. Stat. sec. 19.35(1)(h) and denied it.
The trial court upheld the County’s actions. On appeal the court of appeals addressed Gehl’s claims that the County unlawfully deleted pre-June 2002 emails and improperly denied his revised 2004 request.
The court characterized Gehl’s claim of unlawful records destruction as an attempt to “seek relief under the public records law for an alleged violation of the records retention laws.” The court explained that this attempt was unavailing because its ruling in State ex rel. Zinngrabe v. School Dist. of Sevastopol, 146 Wis. 2d 629, 431 N.W.2d 734 (Ct. App. 1988) established that “an agency’s alleged failure to keep sought-after records may not be attacked under the public records law.”
Gehl sought to limit Zinngrabe to situations where the requested records were never created; not created and subsequently destroyed. In response, the court explained that the duty to retain records is not established by the public records law. Rather, the “public records law addresses the duty to disclose records.” Accordingly, the court declined to decide Gehl’s claims that the County improperly destroyed records responsive to his request.
The court did address the County’s denial of Gehl’s revised 2004 request.
It rejected the County’s claim that Schopper v. Gehring, 210 Wis. 2d 208, 565 N.W.2d 187 (Ct. App. 1997) requires a public records request “be limited to those records that are necessary for an ‘announced purpose.’” The court noted that such a requirement was inconsistent with Wis. Stat. sec. 19.35(1)(i) which provides that no public records request may be refused on the grounds that the requester is “unwilling to be identified or to state the purpose of the request.”
The court also rejected the County’s argument that Schopper permits denial of a records request where the request could have been limited but was not. The court explained that the proper focus is the burden imposed on the custodian by the request.
The court agreed that a request which “may result in the generation of a large volume of records is not, in itself, a sufficient reason to deny a request as not properly limited.” However, it explained that part of Gehl’s revised 2004 request “seeks virtually every email that passed between all employees of the five County offices and departments named in his request and any of approximately thirty-four individuals over a two-year period” and was not limited by subject matter. The court further noted that Gehl’s request included search terms that “are so broad on their face as to require the production of a large volume of records . . . without regard to the parties involved and without regard to whether matters implicated Gehl’s interest in any way.” Consequently, the court concluded that the burden imposed on the County by Gehl’s request “is greater than that required by the public records law.”
