Mr. John Foust
N3942 CTH G
Fort Atkinson, WI 53538

Dear Mr. Foust,

You sent an email to Assistant Attorney General Alan Lee earlier this year requesting his opinion as to whether you received an adequate response to a public records request that you submitted to Jefferson County ("County") regarding the activities of the Jefferson County Economic Development Corporation ("JCEDC"). Mr. Lee has taken a new position in the Department of Justice and is no longer handling questions regarding the public records law. I have, therefore, been asked to respond to your email.

You referred me to a website for background. From what I was able to discern from the website, Jefferson County entered into a contract with JCEDC under which JCEDC agreed to provide specified economic development services ("the contract"). On April 19, 2001, you submitted a public records request to the Jefferson County Administrator, asking for a lengthy list of documents "produced or collected" under the County's contract with JCEDC. It appears that over the course of a number of mouths you received documents responsive to some or your requests. However, some of your requests were denied either because the JCEDC maintained that no relevant documents existed or that documents that did exist were not produced or collected under the contract. It appears that a majority of records requested were in the possession of JCEDC and that the County contacted JCEDC on a number of occasions in an effort to obtain responsive records. It appears that to the extent records exist to which you have not been given access, it is because JCEDC has declined to turn them over to the County.

You filed a complaint with the Jefferson County District Attorney. lie referred the complaint to Waukesha County District Attorney Paul Bucher. District Attorney Bucher investigated the matter and concluded in a letter dated December 19,2001, that the response you received complied with the law.

The request you made and the incremental responses that you received are difficult to sort out. Based on the limited information available on the website, I cannot discern with any certainty what requests you believe have been satisfactorily complied with and what requests you continue to believe were not satisfactorily addressed. Based on the limited information available, I can only very generally comment on the response and the issues that I believe concern you.

As you are aware, section 19.36(3) of the Wisconsin Statutes provides "CONTRACTORS' RECORDS. Each authority shall make available for inspection and copying under s. 19.35(1) any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority."

You assert that you made a request that "matches one-for-one" many of the provisions in the contract. For instance, the contract provides that JCEDC will conduct "Organizational Development Activities," including "assemble and maintain databases..." Your request was for "the databases described in item 1, in any electronic format." As I understand it, as of the date you wrote Mr. Lee, you had received some information in hardcopy form, but had not received the databases in electronic form.

Based on the information made available to me, it is unclear whether any databases did in fact exist at the time of your request. Assuming that the data you requested existed in the form of an electronic database, I believe you were entitled to an electronic copy of the database.

I reach that conclusion for three reasons. First, the contract between the County and JCEDC specifically mentions maintenance of database(s) as a service JCEDC will perform for the County. Thus, to the extent any such database contains information collected after the County and JCEDC entered into the contract, the database clearly contains records produced or collected under the contract.

Secondly, section 19.36(4) provides

"COMPUTER PROGRAMS AND DATA. A computer program, as defined in s. 16.971(4)(c), is not subject to examination or copying under s. 19.35(1), but the material used as input for computer program or the material produced as a product of the computer program is subject to the right of examination and copying, except as otherwise provided in s. 19.35 or this section."

The Attorney General has long interpreted this provision to grant the public a right of access to electronic copies of databases, See 75 Op. Att'y Gen. 127 (1986) (a copy of every opinion is enclosed).

Thirdly, the Court of Appeals recently emphasized that with respect to requests for electronic or audio records, the requester has a right to the "source material," i.e, the material in the original format that is collected or maintained. See State ex rel. Milwaukee Police Ass'n v. Jones, 2001 WI App 146, 237 Wis. 2d 840, pp 17, 615 N.W.2 190.

Based on all of the above, if the information you requested was collected after the County and JCEDC entered into the contract and existed in electronic database form, you were entitled to receive the information in electronic form.

However, based on the limited information available to me, it appears that some, but not all, of the information collected and entered into the database(s) arguably may not be subject to disclosure. For example, "labor surveys, wage and benefits" information might legitimately be withheld from public disclosure, depending on the specific nature of the information collected. Much of the information described in the contract would, however, clearly be subject to public disclosure. The public records law requires authorities to separate information that is subject to disclosure from information that is not and to provide access to that which is disclosable. See sec. 19.36(6), Wis. Stats.

You give a series of other examples where you believe you requested records that track word-for-word the terms of the contract. For instance, you pointed out that the contract states that JCEDC will provide "Business Retention Assistance," including "Administer and oversee Tourism Council. Schedule monthly meetings, track activities." You indicate that you requested records including minutes of meetings of the council, but received none. Based on the limited information available to me, it is unclear whether any such records existed at the time of your request. If such records did exist, I believe they should have been disclosed. The contract between the County and JCEDC expressly provides that JCEDC will administer and oversee the Tourism Council. Any records relating to the administration and oversight of the Tourism Council that were produced or collected during the period in which the contract was in place would fit within the contractors' records provision of the public records law. Any such records would thus be subject to disclosure, unless otherwise provided by law.

It appears from the available information that one basis asserted for denying access to some of the records you've requested is the belief that because JCEDC also provides services to private entities, it can be said that the records are not "produced or collected" as part of the contract with the County. I do not agree.

The purpose of the public records law is to grant the public the most complete information about government affairs as is compatible with governmental business. See sec. 19.31, Wis. Stats. The public has a right to information about the terms of contracts that governmental entities enter into and the services provided under such contracts. Here, the County entered into a contract with JCEDC to perform specified services for the County. The County and its citizens have a right to information about how those services are being provided. The fact that a contractor may have contracted with private entities to provide the same services and is performing services for a governmental entity and private entity simultaneously cannot work to deprive the public of its right to information about governmental contracts. Cf 80 Op. Att'y Gen. 129. 137 (1991) (a copy of the opinion is enclosed). Thus, as a general matter, if a record is produced or collected in relation both to providing services under a contract with a governmental entity and under contract with a private entity, the record is subject to the contractors' records provision. Records that are produced or collected strictly in relation to work provided by one private entity to another private entity are, of course, not subject to the contractors records provision.

I spoke with Jefferson County Corporation Counsel Phil Ristow to obtain additional background as part of my review of this matter. I recently learned from Mr. Ristow that the JCEDC is in the process of dissolving. I am forwarding a copy of this letter to the Executive Director of the JCEDC as well as Mr. Ristow. I hope that this letter provides all concerned with helpful guidance in resolving outstanding access issues.

Sincerely,

Mary Woolsey Schlaefer
MWScla

Enclosures

CC: Philip C. Ristow, Marilyn K. Haroldson, Executive Director, JCEDC