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Wis. appeals court orders 3 towns to allow access to databases

By The Associated Press
01.04.07

MADISON, Wis. — Three southeastern Wisconsin municipalities violated the state's open-records law by handing off requests for property-assessment databases to the contractors who compiled them, a state appeals court ruled yesterday.

Sussex, Thiensville and Port Washington control their contractors' records and can't escape that duty by shuffling it off to others, the 2nd District Court of Appeals said.

"Simply because Sussex, Thiensville and Port Washington have contracted out the collection and maintenance of the assessment information does not mean that they have relieved themselves of their responsibilities," the court ruled yesterday.

The decision sends a clear message to government entities that they can't "play games" with record requests, said Jennifer Peterson, an attorney who filed briefs in the case on behalf of the Wisconsin Newspaper Association and the Wisconsin Freedom of Information Council.

"They can no longer say, 'Go talk to our contractor who we hired to do this,'" Peterson said. "They are responsible for ensuring the public has access to their records, including records of their independent contractors."

The appeals court also ruled that WIREdata, a real-estate information collection company that made the request for the three municipalities' databases, is entitled to the actual data in its original format.

"This makes it quite clear that the open-records law extends to computerized data and a municipality can't hide behind an independent contractor," said Alan Deutch, an attorney for WIREdata.

Ray Pollen, an attorney for Sussex and Port Washington, said the municipalities didn't deny the requests. They passed them on to the contractors, who according to their deals with the municipalities were supposed to handle open-records requests.

Pollen said he would discuss an appeal to the state Supreme Court with his clients.

Dan Johnson, an attorney for contractor Assessment Technologies of Wisconsin, which developed software for the databases, declined to comment on the decision.

The ruling marks the latest chapter in a six-year battle over the municipalities' databases.

WIREdata made open-records requests for all three municipalities' property-assessment databases in 2001. The company is a subsidiary of the Multiple Listing Service, a database run by real-estate brokers that helps them compare properties and develop tax analyses, Deutch said.

The municipalities contended they were exempt from the open-records law because the contractors created and had custody of the databases. They directed WIREdata to the contractors, according to the appeals court ruling.

A flurry of legal exchanges ensued. The contractors argued they had copyrights on the databases because they designed them and feared WIREdata might sell the information. A federal appeals court finally ruled the contractors had no legal interest in the data the assessors put into the databases.

Following that decision, one of the contractors sent WIREdata an electronic copy of the information, but in a different format than the municipalities used. A trial judge ruled that wasn't good enough to comply with WIREdata's request.

The appeals court decision cited a 1994 case in which the Milwaukee Journal Sentinel won access to a memo the Shorewood school board's attorneys wrote about a lawsuit settlement, even though the memo was drafted by a private law firm and in the firm's custody.

The 2nd District decision yesterday also held that while a computer program isn't subject to review or copying, data entered into the program and material produced by it is. The court ordered the municipalities to give WIREdata access to copies of the actual databases.

Rich Eggleston, a spokesman for the Wisconsin Alliance of Cities, said there was no excuse for not sending a requester the original electronic data.

"This is a new frontier of open records, and it takes communities a while to get used to it," he said. "This should be an object lesson for communities across the state."


Update
Ruling: Wis. officials don't have to provide access to databases
State high court rules three municipalities didn't violate open-records law by giving company PDFs instead of direct access to electronic property-assessment databases. 06.26.08

Related

N.C. appeals court says town must release public records

Outer Banks Sentinel will receive information so it can report on condemnation of oceanfront land by Kitty Hawk. 01.04.07

Open records

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