State Ex Rel. Borzych v. Paluszcyk
549 N.W.2d 253
Wis. Ct. App.
1996
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*1 Garry A.Borzych, State of Wisconsin ex rel. Petitioner-Appellant, Gary Respondent-Respondent. Paluszcyk, Appeals

Court of No. 95-1711. Submitted on March 1996. Decided briefs 3, 1996. Aрril (Also 253.) reported in 549 N.W.2d *2 petitioner-appellant, the cause On behalf of the Garry Borzych, pro on the se. was submitted brief respondent-respondent, the сause On behalf of the principal Schmitz, ofSteven was submitted on brief corporation assistant counsel. P.J., Nettesheim, JJ. Anderson,

Before Brown and Garry Borzych appeals ANDERSON, A. P.J. judgment trial court where the court from a summary judgment Gary granted in favor of Paluszcyk. Paluszcyk that did not follow We conclude 19.35(l)(i) (3)(f), § when he the dictates of Borzych request. required prepay for a records $1.29 judgment Accordingly, ofthe trial court. we reverse the Borzych petition filed a for a writ of mandamus Paluszсyk, inspector requesting an with the that County Department, be Waukesha Sheriffs petitioner's "perform public duty comply his According writ, ‍​‌‌​​‌‌​​‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​​​‌‌​​‌‌​‍for . . . records." written to the sheriffs submittеd a Goglio. mug department mug for a shot of Robert The 19.35(2), meaning shot was a "record" within Borzych's request responded writing, stating: mug you "The shot is available for County view at the Records Section of the Waukesha following Office, address, or remit to the Sheriffs $1.29 you." Borzych and we will mail it to did not send the consequently, Paluszcyk prepayment, and did not send requested material. writ of mandamus The followed. application records law to the presents question

facts of this case of law which wе review de novo. See Coalition a Clean Gov't for (Ct. Larsen, 159, 163, 166 Wis. 2d N.W.2d 1991). Paluszcyk's App. granted The trial court motion summary judgment. reviewing summary *3 judgment apply determinations, the we same Posyniak standards as the trial court. v. School Sisters Francis, 619, 627, 300, St. 180 Wis. 2d 511 N.W.2d of (Ct. 1993). App. summary judgment A motion shall granted pleadings, depositions, "if answers be interrogatoriеs, the to together file,

and admissions on with any, genuine affidavits, if the show that there is no any moving party to fact that the issue as material and judgment is entitled to a as а matter of law." Section 802.08(2), 19.35(l)(i) (3)(f), cites and

arguing that he "cannot be denied access to a record request by [his] mail, was made and cannot be becausе required receiving prepay the sum of before $1.29 contrast, records." In contends that said require public records law does not a Wisconsin's public ‍​‌‌​​‌‌​​‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​​​‌‌​​‌‌​‍requester. to a record custodian to mail a record According Paluszcyk, the custodian of records has filling request public a for a record the of making сopying by the the record available during he office hours. He states that request legally

"responded to be that did not have to a copy by asking quid pro quо: 'We'll and for a honored please pay in mail, advance.'" but governs to records 19.35, Stats., access Section "General Duties of Public under ch. 19.35(l)(i) provides: Officials." Section no Except paragraph, as authorized under this (a) (b) (f) may refused pars, under be request unwilling person making request is because purpose to be identified or to state the under this request. Except as authorized (a) (f) may paragraph, pars, no under be mail, refused is received because rеquired a fee is under sub. prepayment unless (3)(f). show required A be whenever acceptable requested identification residence or whenever kept рrivate record is at security regulations or federal law or so reasons require. 19.35(3)(f)provides:

Section authority may by a require prepayment An any this imposed fee or fees under if the total amount exceeds $5. subsection 2d 479 N.W.2d at 166 Wis. at 577, the court addressed the issue of whether records law the custodian to requester. mail the record and *4 require said that the law did not it and that the court filling requester's custodian had the the by by requiring requester request or the to do his mail copy work in thе custodian's office.Id. at own "[T]he records elect to N.W.2d at 578. provide custodian requested requester copy the with a record or requester the tо the record." permit photocopy see Id. added); 19.35(l)(b), STATS. (emphasis § apply present Coalition, however, does not to the written, case. At the time thаt Coalition was provided: requester § 1989-90, "If a Stats., ‍​‌‌​​‌‌​​‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​​​‌‌​​‌‌​‍authority having requests record, the custody may, option, permit of the record at its the requester photocopy provide the record or the requester copy substantially with a as readable as the original." § 26sm, 1991 Wis. Act amended 19.35(l)(b) provide: requester appears § "If a personally authority record, of a the having custody may, option, permit of the record at its requester photocopy provide the record or copy substantially with a as as the readable added.) original." (Emphasis legislature significantly changed the statute (1)

so that choice articulated either to (2) permit photocopy record, or provide copy substantially with a as original, as the is not available when a readable requestеr requests material mail. Paluszcyk ability

Here, did not have the to make photocopy By statute, an election. he was 19.35(3)(f), requested. Section and send the mаterial may only clearly states that a custodian prepayment if the amount exceeds five dollars. Borzych's case, dollars; five the amount was under Paluszcyk requesting thus, prepayment. violated the statute did not follow the Because statute, reverse. dictates of the we must By Judgment reversed. the Court.— *5 (concurring). I with

NETTESHEIM, J. concur my majority opinion. separately express I write opinion language that the of Coalition a Clean Gov't (Ct. App. Larsen, 159, Wis. 2d 479 N.W.2d 576 1991), Fortunately, sweeps broadly. toо the 1991 19.35(l)(b), although apparently change in holding, response affords the not in opportunity ‍​‌‌​​‌‌​​‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​​​‌‌​​‌‌​‍to the Coalition application to this to avoid the of Coalition See Wis. Act and future similar cases. § 26sm. majority observes, a

As the Coalition holds that (1) provide option record custodian has the to either: (2) record, оr with readable photocopy allow the the record. 166 Wis. 2d at 479 N.W.2d at 578. Stated differently, obligation the custodian has no to mail or ship requester.1 record to the disagree

I of the Coalition breadth language. Coalition, here, Unlike the obviously such, has no is incarcerated. As he present personally appearing means of before Thus, custodian to obtain the record. absent the party, Borzych's only a third means of assistance of obtaining the record is via the mails or other form of shipping by the custodian —an which the custodian withhold under Coalition. deny many

Thus, the Coalition rule would open prisoners access to records under the might dismay public not records records law. This respond custodians who are often open requests prisoners; from nor frivolous records ‍​‌‌​​‌‌​​‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​‌‌​​‌​‌​​​​‌‌​​‌‌​‍observеs, majority correctly under the current 1As the exist, options applies only statute these same but the statute "requester appears personally of а when the record." Section dismay lawyers judges

would it those who are *6 litigate requests. upon called these But Coalition language persons that it also covers other is so broad physically appear who are before the unable custodian and cannot obtain the assistance of third parties appearance. approach to make such an That directly policy in the face the declared flies open § 19.31, records law. See STATS. many open noted, As wе see abuses of the records (a by prisoners legislature should law matter address). perhaps agree However, I do not open curtailment recоrds law substantial language, allowed the broad Coalition whether or consciously not framed. majority opinion, legislative

As noted change now limits the Coalition only those instances in which the rule to appears personally before the custodian. history regarding

legislative this amendment does not prompted by the Coalition reveal whether it was fortunately Nonetheless, the amendment decision. damage potential eliminates Coalition holding.