PUBLISHED OPINION
Case No.: 95-1711
Complete Title
of Case:
STATE OF WISCONSIN ex rel.
GARRY A. BORZYCH,
Petitioner-Appellant,
v.
GARY PALUSZCYK,
Respondent-Respondent.
Submitted on Briefs: March 1, 1996
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: April 3, 1996
Opinion Filed: April
3, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: ROGER P. MURPHY
so indicate)
JUDGES:
Concurred: Nettesheim, J.
Dissented:
Appellant
ATTORNEYSOn behalf of the petitioner-appellant, the cause was
submitted on the brief of Garry Borzych,
pro se.
Respondent
ATTORNEYS On behalf of the respondent-respondent, the
cause
was submitted on the brief of Steven
Schmitz,
principal assistant corporation counsel.
|
COURT OF APPEALS DECISION DATED AND
RELEASED APRIL
3, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1711
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN ex rel.
GARRY
A. BORZYCH,
Petitioner-Appellant,
v.
GARY
PALUSZCYK,
Respondent-Respondent.
APPEAL
from a judgment of the circuit court for Waukesha County: ROGER P. MURPHY, Judge. Reversed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
ANDERSON,
P.J. Garry A. Borzych appeals from a judgment of
the trial court where the court granted summary judgment in favor of Gary
Paluszcyk. We conclude that Paluszcyk
did not follow the dictates of § 19.35(1)(i) and (3)(f), Stats., when he required Borzych to
prepay $1.29 for a records request.
Accordingly, we reverse the judgment of the trial court.
Borzych
filed a petition for a writ of mandamus requesting that Paluszcyk, an inspector
with the Waukesha County Sheriff's Department, be required to “perform his
public duty to comply with the petitioner's request for ¼ public
records.” According to the writ,
Borzych submitted a written request to the sheriff's department for a mug shot
of Robert Goglio. The mug shot was a
“record” within the meaning of § 19.35(2), Stats.
Paluszcyk
responded to Borzych's request in writing, stating: “The mug shot is available for you to view at the Records Section
of the Waukesha County Sheriff's Office, or remit $1.29 to the following
address, and we will mail it to you.”
Borzych did not send the prepayment, and consequently, Paluszcyk did not
send the requested material. The writ
of mandamus followed.
The
application of the public records law to the facts of this case presents a
question of law which we review de novo.
See Coalition for a Clean Gov't v. Larsen, 166 Wis.2d 159,
163, 479 N.W.2d 576, 577 (Ct. App. 1991). The trial court granted Paluszcyk's
motion for summary judgment. In
reviewing summary judgment determinations, we apply the same standards as the
trial court. Posyniak v. School
Sisters of St. Francis, 180 Wis.2d 619, 627, 511 N.W.2d 300, 304 (Ct.
App. 1993). A summary judgment motion
shall be granted “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”
Section 802.08(2), Stats.
Borzych
cites § 19.35(1)(i) and (3)(f), Stats.,
arguing that he “cannot be denied access to a record because [his] request was
made by mail, and cannot be required to prepay the sum of $1.29 before
receiving said records.” In contrast,
Paluszcyk contends that Wisconsin's public records law does not require a
record custodian to mail a public record to a requester. According to Paluszcyk, the custodian of
records has the option of filling a request for a public record by making the
record available for copying by the requester during office hours. He states that he “responded to a request
that legally did not have to be honored by asking for a quid pro quo: ‘We'll copy and mail, but please pay in
advance.’”
Section
19.35, Stats., governs access to
records under ch. 19, Stats.,
“General Duties of Public Officials.”
Section 19.35(1)(i) provides:
Except
as authorized under this paragraph, no request under pars. (a) and (b) to (f)
may be refused because the person making the request is unwilling to be
identified or to state the purpose of the request. Except as authorized under this paragraph, no request under pars.
(a) to (f) may be refused because the request is received by mail, unless
prepayment of a fee is required under sub. (3)(f). A requester may be required to show acceptable identification
whenever the requested record is kept at a private residence or whenever
security reasons or federal law or regulations so require.
Section 19.35(3)(f) provides:
An authority may require prepayment by a requester of
any fee or fees imposed under this subsection if the total amount exceeds $5.
In
Coalition, 166 Wis.2d at 161, 479 N.W.2d at 577, the court
addressed the issue of whether the public records law required the custodian to
copy a public record and mail the copy to the requester. The court said that the law did not require
it and that the custodian had the option of filling the requester's request by
mail or by requiring the requester to do his own copy work in the custodian's
office. Id. at 165, 479
N.W.2d at 578. “[T]he records custodian
may elect to provide the requester with a copy of the requested record or
permit the requester to photocopy the record.”
Id. (emphasis added); see § 19.35(1)(b), Stats.
Coalition, however, does not apply to the present case. At the time that Coalition was
written, § 19.35(1)(b), Stats.,
1989-90, provided: “If a requester
requests a copy of the record, the authority having custody of the record may,
at its option, permit the requester to photocopy the record or provide the
requester with a copy substantially as readable as the original.” 1991 Wis. Act 269, § 26sm, amended §
19.35(1)(b) to provide: “If a requester
appears personally to request a copy of a record, the authority having
custody of the record may, at its option, permit the requester to photocopy the
record or provide the requester with a copy substantially as readable as the
original.” (Emphasis added.)
The
legislature significantly changed the statute so that the choice articulated in
Coalition, either to (1) permit the requester to photocopy the
record, or (2) provide the requester with a copy substantially as readable as
the original, is not available when a requester requests material by mail.
Here,
Paluszcyk did not have the ability to make an election. By statute, he was required to photocopy and
send the material requested. Section
19.35(3)(f), Stats., clearly
states that a custodian may only request prepayment if the amount exceeds five
dollars. In Borzych's case, the amount
was under five dollars; thus, Paluszcyk violated the statute by requesting
prepayment. Because Paluszcyk did not
follow the dictates of the statute, we must reverse.
By
the Court.—Judgment reversed.
No. 95-1711
NETTESHEIM,
J. (concurring). I concur with the
majority opinion. I write separately to
express my opinion that the language of Coalition for a Clean Gov't v.
Larsen, 166 Wis.2d 159, 479 N.W.2d 576 (Ct. App. 1991), sweeps too
broadly. Fortunately, the 1991 change
in § 19.35(1)(b), Stats.,
although apparently not in response to the Coalition holding,
affords the opportunity to avoid the application of Coalition to
this and future similar cases. See
1991 Wis. Act 269, § 26sm.
As
the majority observes, Coalition holds that a record custodian
has the option to either: (1) provide
the requester with a readable copy of the record, or (2) allow the requester to
photocopy the record. Coalition,
166 Wis.2d at 165, 479 N.W.2d at 578.
Stated differently, the custodian has no obligation to mail or ship the
record to the requester.[1]
I
disagree with the breadth of the Coalition language. Unlike the requester in Coalition,
here, Borzych is incarcerated. As such,
he obviously has no present means of personally appearing before the custodian
to obtain the public record. Thus,
absent the assistance of a third party, Borzych's only means of obtaining the
record is via the mails or other form of shipping by the custodian—an option which
the custodian may withhold under Coalition.
Thus,
the Coalition rule would deny many prisoners access to public
records under the open records law.
This might not dismay public records custodians who are often required
to respond to frivolous open records requests from prisoners; nor would it
dismay those lawyers and judges who are called upon to litigate these
requests. But the Coalition
language is so broad that it also covers other persons who are physically
unable to appear before the custodian and cannot obtain the assistance of third
parties to make such an appearance.
That approach flies directly in the face of the declared policy of the
open records law. See
§ 19.31, Stats.
As
noted, we see many abuses of the open records law by prisoners (a matter the
legislature should perhaps address).
However, I do not agree with the substantial curtailment of the open
records law allowed by the broad Coalition language, whether or
not consciously framed.
As
noted by the majority opinion, the legislative change to § 19.35(1)(b), Stats., now limits the Coalition
rule to only those instances in which the requester appears personally before
the custodian. The legislative history
regarding this amendment does not reveal whether it was prompted by the Coalition
decision. Nonetheless, the amendment
fortunately eliminates the potential damage of the Coalition
holding.11