This Legal Update will offer several examples of recurring issues under the Wisconsin Public Records (Wis. Stat. §19.31, et. seq.) and Open Meetings (Wis. Stat. §19.81, et. seq.) laws to assist local governments, including school districts and other municipalities, with practical compliance. It is not intended as an exhaustive compliance checklist, but rather a collection of reminders related to some common scenarios.
Public Records
“FOIA”
It is not uncommon for records requestors (particularly from outside Wisconsin) to label their request as a Freedom of Information Act (FOIA) request. That law, however, is only applicable to federal agencies and not to state or local governments. FOIA has more specific timelines and appeal procedures not found in Wisconsin law. To avoid any confusion as to the applicable rules when responding to the request, it may be worthwhile to advise the requestor of the inapplicability of FOIA, but also confirm that the request will be processed under the provisions of the Wisconsin Public Records Law. It is not advisable to simply ignore the request or refuse to fulfill the request because it does not specifically reference the Wisconsin Public Records Law.
Timelines
Requestors will sometimes purport to require a response within “five days” or “ten working days”, but those deadlines are not required by law. The “five days” reference is a provision in the Wisconsin Public Records Law, which requires a requestor whose oral request was orally denied to request a written statement of the reason for denial within that timeline. (Wis. Stat. §19.35(4)(b)) The “two weeks” reference is based on guidance from the Attorney General that, generally speaking, ten working days is a reasonable timeframe to respond to a simple records request, but that guidance also acknowledges that actual response time may be longer based on the nature or breadth of the request.
Prepayment Requests
When faced with a public records request for documents, which could be located in multiple files or if the request identifies multiple individuals as communication sources or recipients, an option available under the law is to require prepayment of the “location” costs before conducting the search if the estimated cost exceeds $50 (Wis. Stat. §19.35(3)(c)).
Recent informal correspondence from an Assistant Attorney General has taken the position that location costs are not recoverable (or should be refunded) if no record is located. (Department of Justice correspondence January 7, 2026, to Christine Brennan). That view may be challenged in some future instance under the argument that “locating a record” necessitates a search, and often a records custodian does not know if such a record exists or not. To suggest that the public entity’s expenditure of taxpayer paid time and effort to determine if the record exists within the custodian’s archives should be absorbed by the public, and not the requestor, seems inconsistent with the public policy behind the fee provision. While it is clear redaction time is not allowed per caselaw, that is more obviously a separate function from locating the record. The search function is not dependent on the result; it is required and exists regardless of whether a record is found.
Open Meetings
Closed Session Specificity
It is not unusual to encounter closed session agenda items which are likely inadequate under the law. One example is when only the statutory exemption for closed session is cited without a reference to the actual purpose that fits within the exemption. Another is when the stated purpose for the closed session is too vague. For example, guidance from the Attorney General makes clear that simply stating “personnel” or “employee matter” when citing Wis. Stat. §19.85(1)(c) is inadequate. Some additional context should be provided, such as “review of terms of individual administrative employment contract” or “conduct private conference regarding teacher nonrenewal.”
A Wisconsin Court of Appeals decision in 2025 focused on the level of notice specificity required under the “competitive” or “bargaining” exemption found in Wis. Stat. §19.85(1)(e). See our prior Legal Update [Convening in Closed Session for Bargaining Purposes] on that topic.
Sign-In Requirement
While local governments can request that those attending a meeting of the governmental body sign-in by writing their name and perhaps contact information on a paper or electronic register, recent informal correspondence from the Attorney General’s office makes clear its view that signing in must be voluntary and not a requirement to attend the meeting; a “. . . body has no authority to refuse entry to, or remove, attendees who decline to sign in or identify themselves from an open meeting, unless otherwise provided by law.” (Informal Department of Justice correspondence to Thomas Willecke, September 29, 2025). Such a requirement runs contrary to the underlying principle that all meetings of Wisconsin governmental bodies be open to all citizens at all times, except when in a properly noticed closed session.
Attorney Advice
An exemption sometimes misunderstood is found in Wis. Stat. §19.85(1)(g), which deals with consultation with legal counsel. The misunderstanding results from ignoring the second part of the exemption, which refers to “litigation in which [the body] is or is likely to be involved.” In other words, simply conferring with legal counsel without any pending or threatened litigation is not enough to fit under subsection (g). (Of course, there may be other exemptions which might apply to a conference involving counsel, such as an employee discipline matter under subsection (c) or terms of a real estate transaction under subsection (e)). The threat of litigation may be satisfied without an actual lawsuit pending, however, such as considering a statutory claim under Wis. Stat. §893.80, or demand correspondence from an attorney representing a third party which could evolve into an action against the public entity.
