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John Foust - JCEDC Refusals

 

December 19, 2001

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

RE: TNOl-0466

Dear Mr. Foust:

I am following up on my previous letter to you relative to your open meetings complaint to the Jefferson County District Attorney. As you know, I was assigned as a Special Prosecutor to review this matter. I have taken a great deal of time in reviewing this matter because it is very complicated.

As it relates to your request for records from the Commerce and Industry Association, I have been advised those records either have been turned over to you, or the records you are requesting are not available to you. During my conversations with representatives of the Chamber of Commerce, I was advised that any and all records that were created by the Commerce and Industry Association had been turned over to you. The exception would be the telephone records. I have been advised that the Commerce and Industry Association (CIA) used a common shared phone line with the Chamber of Commerce. Therefore, they have not created any records relative to the phone, specifically related to the CIA. The Chamber of Commerce, of course, has phone records which have been created by the Chamber. Those are not available to you under the Wisconsin Open Meetings Law. You are requesting long distance telephone bills for specific months for the Commerce and industry Association. Once again, I have been informed that those records have not been produced by the Commerce and Industry Association. They were produced by the Chamber of Commerce because the Commerce and Industry Association apparently used the phone lines of the Chamber of Commerce.

In my opinion, the Wisconsin Open Records Law does not allow private records to be drawn into the Open Records Law in this fashion. Because the Commerce and Industry Association entered into a contract with the City of Jefferson, you may be entitled to records that the Commerce and Industry Association has produced pursuant to that contract. However, you are not entitled to 3rd party records. That is, if the Commerce and Industry Association contracted out to another business concern to assist it in satisfying its contractual obligations, that does not allow you to access the records of that third party. I believe the current situation we have here is very similar to that. The Chamber of Commerce allowed the Commerce and Industry Association to utilize it's phone lines. This is a situation that, in my opinion, is very similar to a situation involving sub-contracting. The Wisconsin courts have passed on this issue and made it very clear that records in such a sub-contracting situation are not available under the contractor records exception. As you know, the only right to inspection that exists in this case for the records produced by the Commerce and Industry Association is that granted by the Contractor record provision of Section 19.36(3) of the Wisconsin Statutes. That section reaches "only such records as are produced or collected under the terms of the contract." You are requesting disclosure of records by a 3rd party which has no contractual relationship with the Commerce & Industry Association. Therefore, as in the case of Building and Construction Trades v. Waunakee School District 221 Wis. 2d, 575, your request is beyond the express terms of Section 19.36(3). Therefore, your request for the records of the Commerce and Industry Association is denied.

As it relates to your record request relative to the Jefferson County Economic Development Corporation, I have reviewed the response of Corporation Counsel Philip Ristow, as well as the response I received from Attorney Robert L. Gordon, who represents the Jefferson County Economic Development Corporation. I understand the various positions that have been taken by the Jefferson County Economic Development Corporation. I have also had an opportunity to review the contract involved in this matter, as well as the memo of Marilyn Haroldson. I am assuming you have a copy of the contract dated February 28, 2001, between Jefferson County and the Jefferson County Economic Development Corporation. I am also assuming you have a copy of the memo from Marilyn Haroldson of the Jefferson County Economic Development Corporation. I am also aware that you have received a significant amount of additional material, albeit not in an electronic format, from the Jefferson County Economic Development Corporation or from the Jefferson County Corporation Counsel who had received it from that entity. Apparently you reviewed that information in the Corporation Counsel's office, based upon an email you sent to Corporation Counsel Ristow dated July 23, 2001. It appears there was a significant amount of additional information supplied to you. However, it appears that you believe the information supplied did not satisfy your request. In addition, you wanted to review the information in an electronic database and not in a paper copy format.

As you can imagine, it is difficult for me to discern what records were specifically created pursuant to this contract and what records were already in existence or obtained from other sources. Without having reviewed all the records myself, I find that the Jefferson County Economic Development Corporation has complied with the Wisconsin Open Records Law and submitted all of the records that were collected under a contract with Jefferson County. I am sure that there were additional records that were in existence and in the possession of the Jefferson County Economic Development Corporation well in advance of their entering into the contract with Jefferson County. I am sure that they utilize those records in executing the contract and performing the service for Jefferson County. That does not mean that those records became public. This is especially true when you are attempting to use a very narrow provision that in essence converts private records into public records because that entity had entered into a contract with an "authority". In this case, that "authority" is Jefferson County.

The purpose of Section 19.36(3) is to make sure a governmental entity or authority does not attempt to hide records by simply sub-contracting work to a private entity. If that were the case, then, of course, the government could avoid turning over what would otherwise be public records simply by contracting that work out to a private entity. That is the exact evil, if you will, that 19.36(3) is intended to address. It appears to me that you are trying to use that provision to examine any and all records that may be in the possession of the Jefferson County Economic Development Corporation that were used in any respect in execution of a contract Jefferson County Economic Development Corporation entered into with Jefferson County. That simply is not proper under 19.36(3). In my opinion 19.36(3) must be narrowly construed in order to achieve the purpose for which it exists. I believe that purpose has been satisfied based upon my review of the correspondence that has been sent to me in this case.

I am sure there are records that you would like to review that are in the possession of the Jefferson County Economic Development Corporation. That's not the point. I am sure that some of those records may assist you and shed light into what services Jefferson County Economic Development Corporation provided for Jefferson County. That is also not the purpose of this section of the Open Records Law.

At this point in time I believe all of the records that were collected or produced under the contract with Jefferson County had been made available to you in one form or another. To force the Jefferson County Economic Development Corporation to open up it's books and allow you to peruse all the records it has in it's possession, custody, or control, even those that were used in providing a service to Jefferson County, would be an improper application of the Open Records Law. As you know, the purpose of the Open Records Law is to shed light on the workings of government and the acts of public officers and employees. That has occurred here. This case does not present the type of danger that the statutory section you are attempting to use was intended to prevent: "Avoidance of the public access mandated by the public records law by delegating the records creation and custody to an agent." Therefore, I believe this case is closed. Of course, you may seek review by a writ of Mandamus pursuant to the Wisconsin Open Records Law on your own behalf.

Thank you for your patience regarding this matter. I apologize for any delays that occurred, but due to the press of other business and some personal issues, I was not able to get to this case as quickly as I would like.

Very truly yours,
PAUL E. BUCHER
District Attorney
State Bar #1014958

CC: Phil Ristow, Corporation Counsel Jefferson County
Attorney Robert Gordon Weiss, Berzowski, Brady, LLP
District Attorney David Wambach Jefferson County