"Personal Notes" in the School Setting

by Robert W. Burns, Attorney, and Abby S. Busler, Attorney, Davis & Kuelthau, s.c

The Wisconsin Public Records law embodies the general proposition that all individuals are entitled to the greatest possible information regarding governmental affairs and official acts of government officials.  The Wisconsin Public Records Law creates a strong presumption in favor of complete public access to public records.  Public institutions, including public elementary schools, secondary schools, technical colleges and universities are subject to the Wisconsin Public Records Law.

Individuals may submit requests to access public records in schools and the district must respond to the request.  Administrators might receive a wide variety of requests from parents, media or interested citizens.  The records custodian will review whether the material requested is a record as defined in the statute, and whether such a record exists.  It is generally presumed that the record should be disclosed.  However, exceptions do apply and the school must consider whether the law specifically requires disclosure of the records.  “Record” is defined in Wis. Stat. 19.32(2) as follows:

“Record" means any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority. “Record" includes, but is not limited to, handwritten, typed, or printed pages, maps, charts, photographs, films, recordings, tapes, optical discs, and any other medium on which electronically generated or stored data is recorded or preserved. 

However, the record definition does contain exceptions for disclosure.  The exception that this article will focus on is “personal notes”.  Personal notes are not records if the notes are used solely to refresh the author’s memory and are not shared with anyone else.  Specifically, Wis. Stat. 19.32(2) explains that: 

“Record" does not include drafts, notes, preliminary computations, and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working; materials that are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent, or bequest; and published materials in the possession of an authority other than a public library that are available for sale, or that are available for inspection at a public library. 

Wisconsin Courts have recently addressed public record requests for personal notes in two cases with different outcomes.  The rationale used by the courts as applied to the facts of each case required different results.  

In the first case, a newspaper called The Voice of Wisconsin Rapids, LLC, appealed the circuit court’s denial of access to the District’s withheld records.  Employees of the Wisconsin Rapids Public School District created documents in connection with interviews during a District investigation surrounding the school athletic program.  The District conducted interviews and District employees created written documents during the interviews.  The newspaper filed a public records request with the District, requesting access to “all district records involving a district investigation into allegations of impropriety in the athletic program.”  The District withheld the requested documents alleging that the documents did not qualify as “records” under Wis. Stat. 19.32(2), because the records should be considered personal notes.

The court conducted its own inspection of the written material, and concluded that the documents were “personal notes made for the originator’s personal use as defined in Wis. Stat. 19.32(2).”  For example, the notes had “doodles and comments” and the notes consisted of highlights recorded for the originator’s own personal use.  The court explained that while the general presumption of the law is that public records are open to the public, certain statutory exceptions narrowly apply.  The notes were mostly handwritten and sometimes barely legible.  The notes included copies of post-it notes, telephone message slips, and contained informal writing. 

The court cited an applicable Attorney General opinion that provided a helpful explanation of the use of notes for public officials:  

The court concluded the notes fit within the exception because the notes were never distributed to other District employees, and the notes were held for the authors’ own personal use to refresh their recollection.  The District employees referenced their own personal notes throughout the investigation, but did not transform the notes from their own personal use into non-personal use.  Therefore, the Court of Appeals affirmed the lower court’s decision and held that the notes were exempt based on the personal use exception.

In the second case, the Animal Legal Defense Fund submitted a records request under the public records law, requesting documents from Wisconsin’s Research Animal Resource Center (which operates under the Wisconsin Board of Regents).  The ALDF requested all documents at meetings pertaining to “all protocols approved by Animal Care and Use Committee regarding research on non-human primates involving material deprivation and social isolation or deprivation and all protocol revision requests.”  The Research Center responded by providing some, but not all, requested documents.  ALDF continued requesting more documents, including notes taken by individual employees during the Board meetings.   

The circuit court determined that the notes requested were personal notes, and were not required to be disclosed.  However, the Wisconsin Court of Appeals reversed the circuit court’s decision in Animal Legal Def. Fund v. Bd. Of Regents of Univ. of Wisconsin, 2107 WI App 80, ¶ 1, 378 Wis. 2d 740, 905 N.W. 2d 843. 

The Court of Appeals followed the two prong test from Voice of Wisconsin Rapids, and first determined that the employee’s writings were indeed “notes”.  The notes contained individual handwriting, and informal, hurried and fragmentary words, similar to Voice of Wisconsin Rapids notes.  

However, the notes were not prepared for the originator’s personal use, unlike the notes in Voice of Wisconsin Rapids.  The employees explained that their notes were created to assist the official note taker/minutes taker.  One employee testified that her notes were given to the other employee to create the final draft of the meeting minutes.  Essentially, the employees’ notes were created “for the purpose of communicating information,” and therefore not prepared for personal use.  It was clear that the authors’ creation of notes was not voluntary, at their own initiative, and for their own convenience.  The authors created the notes as part of their employment, in order to draft official minutes of the meeting and to memorialize the public body’s activity.  Therefore, the court concluded that the withheld notes were not created for personal use, and were required to be disclosed. 

Important takeaways from both cases:

School administrators must be cautious when receiving record requests and refer them to the District’s records custodian to ensure that the District is either providing the required documents or responding with a proper denial to a record request.  Administrators should keep in mind that when notes are retained for the purpose of memorializing school activity, notes go beyond mere personal use and cannot fall within the personal use exception.  During investigations, interviews, or other types of meetings, it is important to remind employees of the implications of any notes they may take.  If employees are taking notes for their personal use, and will only refer to the notes in the future to assist their memory, then it is likely the notes are personal, and would not be disclosed in the future. However, if an employee is required to draft minutes, or otherwise record meetings or circulate the notes to others, then those notes are probably not for personal use and are available for disclosure.  Consistent application of those principles will assist administrators in proper compliance with public records laws. 

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This article was written by Attorneys Robert W. Burns and Abby S. Busler of Davis & Kuelthau, s.c. The views expressed herein are exclusively those of Mr. Burns and Ms. Busler. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic. 

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