A Wisconsin appellate court has considered whether the state’s open records law required three municipalities to present electronic data in the same electronic format they use to store their property data.
WIREdata, Inc. ("WIRE"), a company owned by Multiple Listing Services, Inc. (a regional REALTOR owned multiple listing service in Wisconsin), obtained data about properties in its service area by paying fees to various municipalities. However, three municipalities ("Municipalities") refused to provide this information to WIRE because they had license agreements with Assessment Technologies of WI, LLC ("Vendor").
The Vendor had developed a computer program named "Market Drive" ("Program"), which allows tax assessors to enter information about various properties into specific fields. The Program uses the property data to populate 456 data fields, which allows the municipalities the ability to search the information gathered by the tax assessors using the Program. The Vendor had copyrighted the Program. In response to the data requests from WIRE, the Vendor informed WIRE that it would need to pay a one-time $6600 fee to use the program plus additional fees for the data accessed.
WIRE brought lawsuits against the Municipalities in order to force them to share their data. The lawsuits were based on the Wisconsin open records law, which requires public records to be available to anyone who is willing to pay the copying fee. Following the filing of WIRE's lawsuits, the Vendor brought a lawsuit against WIRE alleging copyright infringement and sought to prevent WIRE from forcing the Municipalities to allow access to their databases. The United States Court of Appeals for the Seventh Circuit found that the Municipalities’ data was not protected by the copyright laws. After the ruling, the Municipalities offered WIRE the requested information in a *.pdf format, not in the Access database format that the Municipalities received from the Program.
Following the ruling of the Seventh Circuit, WIRE resumed its lawsuits against the Municipalities. All of the parties sought judgment in their favor. One of the trial courts ruled in favor of WIRE, while two other courts ruled in favor of two of the Municipalities. The parties appealed, and all three cases were consolidated into one case upon appeal.
On appeal, the Wisconsin Court of Appeals, District II, ruled in favor of WIRE, finding that the Municipalities violated the state’s open records law and so awarded WIRE its costs for bringing the lawsuits. The state open records law presumes “complete public access” to government records, and “only in an exceptional case may access be denied”. While a computer program is not subject to examination by the public, the data inputed into the program or the material produced is subject to the right of examination and copying by the public. A public authority must either produce a record request immediately or immediately notify the requestor on why its request is being denied. If a request is improperly denied, the requestor is entitled to recover costs incurred in obtaining the records, including attorney fees, damages, and other costs.
The Municipalities first argued that they were not the responsible “public authority” in terms of the open records law, as they had contracted away this authority to the Vendor. Looking at prior cases, the court found that public authorities like the Municipalities could not contract away this authority and remained responsible for any open records violations by a third party with whom it had contracted. Therefore, the court ruled that the Municipalities would be liable for any open records law violations by the Vendor.
Next, the court considered whether the *.pdf format WIRE received from the municipalities satisfied the requirements of its open record requests. WIRE had requested an “electronic/digital copy” of the records, and the Municipalities argued that the *.pdf format satisfied that request. The state open records law requires that the production of “any material on which… electromagnetic information is recorded or preserved, regardless of physical form or characteristics”. The Municipalities received the property data in the form of an Access database, not a *.pdf file.
Since the Municipalities are required to produce the data in the same physical form it receives the data, the court determined that the Municipalities were required to produce the data in the same Access database used by the Municipalities. The Access database allows easier access to the data than a *.pdf file, and so the court ruled that the spirit of the open records law required the Municipalities to produce the records in the same format that the Municipalities received the data. Therefore, the Municipalities violated the open records law by failing to produce data in this format and so the court sent the case back to the lower courts for an imposition of fees against the Municipalities.
WIREdata, Inc. v. Village of Sussex, Nos. 2005AP1473, 2006AP174, 2006AP175, 2007 WL 10110 (Wis. Ct. App. Jan. 3, 2007). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].
Editor’s Note: Special thanks to Peter Shuttleworth of Multiple Listing Service, Inc., for forwarding a copy of this decision to Legal Affairs.