Wisconsin Open Records Law Prohibits Charging Redaction Fee

The Wisconsin Supreme Court held that governmental entities have no authorization to charge the public for time spent redacting confidential information from public records.

The ruling came in a lawsuit brought by the Milwaukee Journal Sentinel after reporters Ben Poston and Gina Marie Barton sought records from the Milwaukee Police Department. The newspaper sued after the Department demanded $4,000 to cover the cost of staff time to redact nondisclosure information, such as Social Security numbers, financial account numbers, and crime victim and suspect identifying information.

The Milwaukee Circuit Court granted summary judgment to the City, holding it may charge the newspaper fees “for all actual, necessary and direct costs incurred by [the City] in complying with the two public records requests at issue; including the actual costs of staff time to review and redact confidential information included within the responsive records.”

The Supreme Court granted the newspaper’s petition to bypass the court of appeals. After briefing was complete, which included a brief by the state’s attorney general supporting the newspaper, the Court held that there is no statutory authority for government entities to charge the newspaper “for the costs, including staff time, of redacting information.”

“If the Legislature had wanted to allow an authority to impose fees for a broad range of tasks, or if it had wanted to include… redaction as a task for which fees may be imposed, it would have said so,” the Court wrote.

The Court recognized the issue here directly implicates the accessibility of government records. “The greater the fee imposed on a requester of a public record, the less likely the requester will be willing and able to make a record request,” wrote the Court. “Thus, the imposition of fees may even serve to deny access to government records.”

The Court found the Legislature’s preference is for “complete public access,” and that the imposition of costs, as a practical matter, inhibits access.

Bill Lueders, president of the Wisconsin Freedom of Information Council, praised the decision. “We believe this affirms not just the letter of the [open records] law, but its spirit,” he said.

Greg Borowski, the Journal Sentinel’s projects and investigations senior editor, saw it as a public victor. “We’re approaching this like any citizen would,” he said. “If the impediment is so high it makes it difficult for us to do it, imagine what it would be for a citizen.” See: Milwaukee Journal Sentinel v. City of Milwaukee, 341 Wis.2d 607 (Wis. 2012).

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