[HISTORY: Adopted by the Village Board of the Village of Elm Grove as indicated in article histories. Amendments noted where applicable.]
[Adopted 2-14-1983; as amended through 6-9-1986 (subsequent amendments noted where applicable)]
As used in this article, the following terms shall have the meanings indicated:
- DEPUTY LEGAL CUSTODIAN
- The chief administrative officer of a department or operational unit within the Village and shall include without limitation the Village Clerk, the Police Chief and the Fire Chief. A deputy legal custodian ordinarily has direct control and custody of records pertaining to his/her respective area of responsibility and expertise.
- LEGAL CUSTODIAN
- The Village Manager.
- Any material on which written, drawn, printed, spoken, visual
or electromagnetic information is recorded or preserved, regardless
of physical form or characteristics, which has been created or is
being kept by a department or operational unit within the Village.
"Record" includes, but is not limited to, handwritten, typed or printed
pages, maps, charts, photographs, films, recordings, tapes (including
computer tapes), computer printouts and optical disks. "Record" does
not include drafts, notes, preliminary computations and like materials
prepared for an originator's personal use or prepared by an originator
in the name of a person for whom the originator is working; materials
which are purely the personal property of the custodian and have no
relation to the position held by a person; materials to which access
is limited by copyright, patent or bequest; and published materials
in the possession of a department or operational unit within the Village
which are available for sale or which are available for inspection
at a public library.[Amended 12-11-2000]
The Village Manager or, in his/her absence, disability or in case of vacancy, the appropriate deputy legal custodian acting in place of the Village Manager under circumstances described in Subsection E(4) hereafter is hereby designated the legal custodian of Village records.
Unless otherwise prohibited or restricted by law, the Village Manager shall act as legal custodian for the Village Board and for any committees, commissions, boards or other authorities created by ordinance or resolution of the Village Board.
The legal custodian, or the deputy legal custodian substituting for the legal custodian in accordance with Subsection E(4) hereafter, shall have full legal power to render decisions and to carry out the duties of an authority under §§ 19.31 to 19.39, Wis. Stats., and this article.
The designation of a legal custodian does not withdraw, lessen or diminish the powers and duties of any administrative officer of a department or operational unit within the Village, except that the final authority to withhold access to any public records from any member of the public must be exercised by the legal custodian, except as provided in Subsection E(4) below.
The chief administrative officer of every Village department or operational unit, including, but without limitation, the Village Clerk, the Police Chief and the Fire Chief, is hereby designated to be a deputy legal custodian who shall make determinations with respect to requests for access to records as follows:
Each deputy legal custodian may, without prior consent of the legal custodian, permit access to public records within his/her control, custody and expertise provided he/she determines that such records can be accessed by the public.
Each deputy legal custodian who determines that access to a particular public record should not be granted shall make a recommendation to the legal custodian communicating the demonstrative reasons for the need to restrict access. Thereafter, it shall be the responsibility of the legal custodian to accept or reject such advice. Upon making a final determination, the legal custodian shall communicate his/her determination to the requester in accordance with § 19.35(4), Wis. Stats.
In making the final determination, the legal custodian may inspect the records being sought and shall receive all assistance and advice as may be required from any Village employee or agent in the process of formulating a determination as to a request for access to records.
In the event that the Village Manager is unavailable as provided in Subsection A above, the deputy legal custodian shall perform the duties of the legal custodian as required by this article, except that no internal recommendation to another party is required as provided in Subsection E(2) since in such cases the deputy legal custodian makes the determination as to access.
Records will be available for inspection and copying during all Village Hall business hours (9:00 a.m. to 4:00 p.m.).
The legal custodian may, in his/her discretion, require supervision during inspection or may impose other reasonable restrictions on the manner of access to records.
A requester shall be charged a fee to defray the cost of copying records as follows:
If the form of a record does not permit copying, the actual and necessary cost of photographing and photographic processing shall be charged.
The actual full cost of providing a copy of other records not in printed form on paper, such us films, computer printouts and audio or video tapes, shall be charged.
If mailing or shipping is necessary, the actual cost thereof shall also be charged.
There shall be no charge for locating requested records unless the actual cost therefor exceeds $50, in which case the cost shall be estimated by the legal custodian and collected in advance from the requester. The legal custodian shall have discretion to construe to a series, scheme or pattern of requests for records made in the form of individual requests as if only one request for records had been made for purposes of calculating the locating costs. Multiple requests for records may be treated as a singular request, provided the legal custodian can reasonably demonstrate a substantial degree of similarity among the requests with respect to subject matter, timing of the requests, continuity of the requests, source of the request and focus of the requests.
The legal custodian shall estimate the cost of all applicable fees and may require a cash deposit adequate to assure payment, if such estimate exceeds $5. No charges will be assessed for any request under $3.
A request to inspect or copy a record shall be made to the legal custodian or deputy legal custodian. A request for a record without a reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request. A requester may be required to show acceptable identification whenever security reasons or federal law or regulations so require.
The legal custodian, upon request for any record, shall, as soon as practicable, either fill the request or notify the requester of the determination by the legal custodian to deny the request in whole or in part and the reasons therefor. If the legal custodian determines that a written request is so general as to be unduly time-consuming, the party making the request may first be required to itemize his or her request in a manner which would permit reasonable compliance.
A request for a record may be denied as provided in § 65-5. Every written denial of a request shall inform the requester that if the request for the record was made in writing, then the determination is subject to review upon petition for a writ of mandamus under § 19.37(1), Wis. Stats., or upon application to the Attorney General or the District Attorney.
As provided by § 19.36, Wis. Stats., the following records are exempt from inspection under this section:
Records specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law;
Any record relating to investigative information obtained for law enforcement purposes if federal law or regulations require exemption from disclosure or if exemption from disclosure is a condition to receipt of aids by the State of Wisconsin;
Computer programs, although the material used as input for a computer program or the material produced as a product of the computer program is subject to inspection; and
A record or any portion of a record containing information qualifying as a common law trade secret.
Access to or copies of plans and/or construction documents of any Village-owned or-leased structure, including fixtures and structures relating to municipal water, storm surface water, sanitary sewer facilities, public utilities, including gas pipelines, petroleum lines, transformer box substations, communication fixtures and facilities, and all buildings over 40,000 square feet are not subject to open record in order to protect public safety.
As provided by § 43.30, Wis. Stats., Village public library circulation records are exempt from inspection under this section.
In responding to a request for inspection or copying of a record which is not specifically exempt from disclosure, the legal custodian, after consultation with the deputy legal custodian as provided in § 65-2E(2) above and with the Village Attorney, may deny the request, in whole or in part, only if he or she determines that the harm to the public interest resulting from disclosure would outweigh the public interest in full access to the requested record. Examples of matters for which disclosure may be refused include, but are not limited to, the following:
Records obtained under official pledges of confidentiality which were necessary and given in order to obtain the information contained in them.
Records of current deliberations after a quasi-judicial hearing.
Records of current deliberations concerning employment, dismissal, promotion, demotion, compensation, performance or discipline of any Village officer or employee or the investigation of charges against a Village officer or employee.
Records concerning current strategy for crime detection or prevention.
Records of current deliberations or negotiations on the purchase of Village property, investing of Village funds or other Village business whenever competitive or bargaining reasons require nondisclosure.
Financial, medical, social or personal histories or disciplinary data of specific persons which, if disclosed, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such history or data.
Communications between legal counsel for the Village and any officer, agent or employee of the Village when advice is being rendered concerning strategy with respect to current litigation in which the Village or any of its officers, agents or employees is, or is likely to become, involved or communications which are privileged under § 905.03, Wis. Stats.
If a record contains information that may be made public and information that may not be made public, the custodian of the record shall provide the information that may be made public and delete the information that may not be made public from the record for release. If in the judgment of the custodian there is no feasible way to separate the exempt material from the nonexempt material without unreasonably jeopardizing nondisclosure of the exempt material, the entire record shall be withheld from disclosure.
Unless otherwise provided by law, the provisions of Article II of this chapter shall control maintenance and the destruction of public records.
The purpose of this article is to establish a Village records retention schedule and authorize destruction of Village records pursuant to the schedule on an annual basis. Records custodians do not have the authority to destroy records prior to the established retention period unless such records have been photographically reproduced as original records pursuant to § 16.61(7), Wis. Stats., and under this article.
The State Historical Society of Wisconsin (SHSW) has waived the required sixty-day statutory notice under § 19.21(5)(d), Wis. Stats., for the records in § 65-12 of this article marked "W" which designates "waived notice." The SHSW must be notified prior to destruction of records marked "N" designating nonwaiver. "N/A" indicates "not applicable" and applies to all records designated for permanent retention. Notice to the SHSW is also required for any other record not specifically listed in this article.
Village records may be kept and preserved on microfilm or optical disk provided the applicable standards established in § 16.61(7), Wis. Stats., are met. Factors such as retention periods and estimated costs and benefits of converting records between different medias should be considered in deciding whether or not to preserve on microfilm or optical disk. The retention periods identified in this article apply to records in any media.
Where a request for inspection of public records has been made under Wisconsin's Public Records Law (§§ 19.31 to 19.37, Wis. Stats.), no requested record may be destroyed until after the request is granted or for 60 days after the request is denied. If an action is commenced under § 19.37, Wis. Stats., the requested record may not be destroyed until a court order is issued and all appeals have been completed.
No record known to be the subject of litigation shall be destroyed until the litigation has been resolved.
The following records shall be maintained for the periods indicated.
[Amended 4-22-2008; 2-22-2016]
General retention period for records. Any record not specifically regulated by this article or any other regulation or law shall be retained for seven years unless a shorter retention period has been approved by the State Public Records and Forms Board.
Audio recordings of meetings. Notwithstanding any provision in this article to the contrary, pursuant to § 19.21(7), Wis. Stats., any tape recording of any meeting may be destroyed no sooner than 90 days after the minutes have been approved (and published or posted where required by the Wisconsin statutes) if the purpose of the recording was to make minutes of the meeting.
This article has been reviewed and approved by the Public Records and Forms Board of the State of Wisconsin on November 15, 1995.