Weiss, Berzowski, Brady & Donohue LLP
700 N. Water St.
Milwaukee, WI 53202-1273
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May 3, 2001

via facsimile (920) 675-0068

Philip C. Ristow, Esq.
Jefferson County Corporation Counsel
320 S. Main Street
Jefferson, Wisconsin 53549-1799

Re: Open Record Request dated April 19, 2001

Dear Phil:

I am responding to your request to the Jefferson County Economic Development Council (JCEDC), to advise you regarding what (if any) JCEDC documents should be provided in response to an Open Record request to the County dated April 19, 2001, from a Mr. John Foust.

The requester seeks a wide variety of JCEDC records on the theory that they were "produced or collected" under thc Contract for Economic Development Services betwecn JCEDC and the County ("Economic Development Contract"), and are thus available from the County under SS 19.36(3), Stats., as "Contractors' Records".

The records which JCEDC has produced or collected (or will produce) for the County under the Economic Development Contract consist of the quarterly and annual reports JCEDC has prepared (or will prepare) for the County Board and/or the County Board Budget Committee. The report(s) already prepared are in the County Board's custody, and should be provided to the requester.

The wide variety of additional records described in the request were not produced or collected under the Economic Development Contract, and thus are not available under the Open Record law from JCEDC, which is a private organization. These include databases and other items referenced in a JCEDC memorandum to the Budget Committee which summarizes the services to be provided under the Economic Development Contract; to the extent such items exist, they are maintained generally by JCEDC, and were not prepared under the Economic Development Contract. The requested records also include internal JCEDC personnel, telephone, budget and other corporate records which are not even arguably available from a private organization under the Open Record law. As I am sure you are aware, the Wisconsin Court of Appeals has consistently held that the purpose of the special contractor rule in SS 19.36(3), Stats., is to prevent a government agency from avoiding the Open Record law by delegating the creation and maintenance of public records to private parties, and this provision cannot be used to obtain private records from a private organization, where the records are not specifically prepared under a government contract.

In addition to the fact that none of the requested documents (other than the reports actually prepared under the Economic Development Contract) is subject to SS 19.36(3) as a threshold matter, certain of these records would not be subject to the Open Record law in any event since they contain personal and proprietary information which is not subject to disclosure under settled common-law principles incorporated into the Open Record law. In addition, certain items included in the request do not exist, and thus are excluded from the Open Record law under SS I 9.35(1)(L).

In sum, since the only JCEDC records which are subject to disclosure under ¤19.36(3) are the reports which the County Board and its Budget Committee already have, there arc no additional records which JCEDC must produce for the County to fully respond to the Open Record request.

Please contact me if I can be of any further assistance.


Very truly yours,

WEISS, BERZOWSKI, BRADY & DONAHUE LLP


Robert L. Gordon

cc: Ms. Marilyn K. Haroldson
Executive Director, JCEDC

* See Building and Construction Trades Council v. Waunakee Community School District:, 221 Wis.
2d 575, 585 N.W.2d 726 (Ct. App. 1998); and Machotka v. Village c/West Salem. 2000 WI App 43, 233 Wis. 2d 106, 607 N.W.2d 319 (Ct. App. 2000).