Legal Requirements for Public Records

Defining Public Records

Chapter 16.61 of the Wisconsin Statutes defines public records as "all books, papers, maps, photographs, films, recordings, or other documentary materials, regardless of their physical form or characteristics, produced or received by any state agency or its officers or employees in connection with the transaction of public business, except the records and correspondence of any member of the state legislature." University records thus consist of all documentary materials (including copies) produced or received by any university department, office, or staff member in connection with university business and retained as evidence of university activities because of the information they contain.

Ownership & Requirements

Legal authority is needed to destroy public records. University records are not the personal property of the staff who create and maintain them but are the property of the University and, ultimately, of the State of Wisconsin. University offices and departments thus do not have the legal authority to dispose of paper records, delete files, erase documents, or purge data elements from a records series without first securing the approval of the Public Records Board (PRB) by submitting records schedules, also known as records retention and disposition authorizations (RDAs), to cover their materials. RDA is a binding legal authority for records disposal. Without an RDA approved by the Public Records Board, departments may not destroy public records. Once approved, however, the RDA is a binding, legal document which provides for both the retention and final disposition of the records series it covers. Departments must delay the destruction of records and retain them beyond their scheduled retention time if the records are needed for purposes of:

  • Litigation: records are needed in a current or pending legal action

  • Audit: particular records are relevant to current or ongoing audits

  • Open Records Request: records may not be destroyed until the open records request has been satisfied or the time period for appeals has expired

Scheduling & the PRB

Disposition Approval. Overseeing the management of the state's public records, the Public Records Board protects the financial, legal, administrative, and historical interests of the State through the review of records schedules prepared by state agencies, including the University. All university offices must seek written approval from the PRB before disposing of any public record; approved records schedules must be reviewed and resubmitted every 10 years. The records scheduling process enables the board to ensure that records are either preserved permanently, if they are of long-term historical value, or else retained and disposed of in the proper manner at the correct time. The Board has the authority to order the destruction, reproduction by microfilm, transfer to optical disk, or temporary or permanent retention of all public records (s. 16.61 Wis. Stats.).

Records Management, Permanent Records and Vital Records. With the Public Records Board's authority comes other duties. The board advises and assists agency records officers in developing useful, cost-effective strategies for records management and provides methods for the disposition of non-permanent records. Using the State Historical Society and University Archives as depositories, the board assists agencies in preserving important records for permanent use.

The PRB is also responsible for identifying those records considered vital and essential in the event of an emergency, advising agencies on the preservation of their vital public records, and providing secure storage for those records (s. 166.10).

University Records Mangement as Liaison. Campus offices do not need to deal directly with the PRB, because the University Records Officer provides information and assistance in preparing records schedules to all departments and acts as a liaison between the campus and the PRB. All offices should submit proposed RDAs to the University Records Officer for review and approval; the Records Officer will then forward the records schedules to the PRB for final approval and notify offices of the status of their Schedule / RDAs.

Access & Rules of Evidence

Wisconsin has an open records law that gives citizens the right to inspect public records, unless specific statutory provisions dictate otherwise. In general, this legislation directs all public authorities to identify some staff person as the legal guardian of the records produced by the authority. In addition, this legislation directs that each authority shall display a notice informing the public of the procedures by which access to public documents can be attained. An authority is allowed to charge for the access to, and/or reproduction of, public documents. If any authority refuses to disclose or delays granting access to records which are eligible for public viewing, persons requesting access to such records can have recourse to legal remedies. For more information on the specific provisions of the open records law, see Chapter 19.31-19.39 of the Wisconsin Statutes:

  • 19.31 Declaration of Open Records Policy

  • 19.32 Definitions

  • 19.33 Legal Custodians

  • 19.34 Procedural Information

  • 19.35 Access to records, fees

  • 19.36 Limitations on access and withholding

  • 19.365 Rights of data subject to challenge, authority corrections

  • 19.37 Enforcement and Penalties

  • 19.39 Interpretation by Attorney General

Along with the State's Open Records Law, Federal Rules of Evidence also help determine the admissibility of public records in court. For more information about open records requests, visit the Office of Legal Affairs webpage on Public Records Law.

Privacy & Confidentiality

While Wisconsin law guarantees access to most public records, it also safeguards the individual's right to privacy by preserving the confidential status of certain records. Both federal and state laws identify certain types of records as confidential, and provide guidelines concerning the training of personnel who collect and have access to such information. Included among these confidential records are:

  • Most medical information

  • Information pertaining to juveniles

  • Records covered by the Family Educational Rights & Privacy Act (FERPA)

  • Records related to law enforcement or litigation while the case remains open

  • Others as specifically cited

When developing their records schedules, university offices must also identify those records series that contain personally identifiable information and notify the Public Records Board of computer matching programs that provide personally identifiable information. "Personally identifiable information" is defined as information that can associated with a particular individual through one or more identifiers or other information or circumstances. Records that contain personally identifiable information, however, are not necessarily confidential. For more detailed information concerning confidential records see Chapter 19.62-19.80 of the Wisconsin Statutes, which details state law regarding privacy and confidential information as follows:

  • 19.62 Definitions

  • 19.65 Rules of Conduct, Employee Training, Security

  • 19.67 Data Collection

  • 19.69 Computer Matching

  • 19.71 Sale of Names and Addresses

  • 19.77 Summary of Case Law and AG Opinions

  • 19.80 Penalties

Administrative Rule 12

On May 1, 2001, Wisconsin's new administrative rule on electronic records management became effective. This rule, Administrative Rule 12 (ADM 12) has important implications for the maintenance of University records. The rule extends many fundamental records concepts and practices into the electronic environment, but it also contains requirements specifically to govern electronic information systems that create and maintain public records.

Background:

In 1995, Wisconsin Act 27 amended the State Public Records optical disk storage requirement under s.16.6111 Stats. to include electronic storage. The definition of public records was also modified to include electronically formatted documents. The Department of Administration was charged with developing an administrative rule applicable to state agencies and local units of government. The objective of the rule is to ensure that the quality of public records in electronic format is maintained and that public records in electronic format remain accessible for their designated retention period.

An interagency team was appointed to develop the rule. It consisted of members from five different state agencies, the State Historical Society, Legislative Council, and the University of Wisconsin-Madison. Team members represented several different functional areas and professional disciplines including lawyers, archivists, information technologists, records managers, and the Public Records Board.

Implications:

Administrative Rule 12 stipulates that if your department maintains any of its official records in electronic format only, then certain requirements must be met to insure that electronic records are retrievable, accessible, reproducible, etc. throughout their retention life.

As defined by Administrative Rule 12, retention life is the period of time the records need to be retained to meet audit, legal, administrative, research, or historical needs for the records. This time period is determined through the records appraisal process that is done in connection with the development of a records retention schedule. In Wisconsin State government, the records schedule is formally referred to as a records retention disposition authorization (RDA). The RDA is reviewed and approved through the Public Records Board which is the statutory authority for records in Wisconsin government. Prior to submitting proposed RDAs from UW-Madison, they are also reviewed by the Campus Records Review Group.

The rule does not require a State agency or local unit of government to keep their public records in any particular format or storage medium. The effect of the rule is that State agencies and local units of government need to realize the implications of media and storage choices. It is strongly advised that records requirements, therefore, be addressed as early as possible in the information systems development process.

Cost:

The cost of creating and maintaining records has always been a part of conducting the business of governing. The costs were frequently not documented well or assumed to be a part of the overhead of an office. There will be costs for the maintenance of electronic records because they require special precautions to ensure their availability over time. Specific costs are difficult to project at this time. Campus departments are well advised when doing major system upgrades or developing a new system to build in the cost for records maintenance and retention. Building in system functionality to meet records needs at the front is normally considerably cheaper than customizing a system after the fact.

Technical Requirements:

The rule outlines several specific requirements that information systems must meet if they produce official public records. Some of these include:

  • Must maintain accurate linkages, electronically or by other means, to transactions supporting records where these linkages are essential to the meaning of the record.
  • Must be able to produce that will continue to have meaning throughout their retention life. In many instances, this will require the development and implementation of a data migration strategy. Migration means the set of organized tasks designed to achieve the periodic transfer of digital materials from one hardware/software configuration to another.

  • Must have the capability to delete and purge records from a system in accordance with an approved records retention schedule.

  • Must be able to accurately reproduce a record with a high degree of legibility and readability and correctly reflect the original record.

  • Must insure the records authenticity. Information systems must be able to document that only authorized persons were involved in the creation, receipt, transmission, maintenance and disposition of records. This may mean that information systems may need to substantiate security and other measures to be sure the records integrity has been maintained.

Storage:

Currently there is not an electronic records equivalent to a records center or archives. Some type of storage capability will need to be developed which can serve to support the retention of inactive electronic records. Planning needs to be undertaken to meet the electronic archival needs of the campus as well.

Policy:

There is not currently any campus-wide policy or approach on this issue. The Campus Records Review Group has met with representatives of the campus administration and the Acting Provost, and it is anticipated that some type of campus planning group will be formed to deal with this important topic.

Board of Regents Policy

A companion to the state and federal regulations, the Board of Regents has issued policy 3-2 University of Wisconsin System Public Records Management to ensure that University records are properly managed in compliance with relevant laws and regulations.