When is a “note” a “note” under the Public Records Law?

It should go without saying, but I’ll say it, that the Wisconsin’s public records law favors public disclosure of public records. Thus questions of whether or not to release a “record” should generally be guided by the presumption of disclosure.

Nevertheless, the public records law does have exceptions, and one of them is for “notes.”  “Notes” are expressly excluded from the definition of record.   As seems to be a common enough occurrence, even the definition of a deceptively simple word like “notes” can lead to a circuit court case, and an appellate court case – The Voice of Wisconsin Rapids, LLC, v. Wisconsin Rapids Public School District.

In this case, although it took it several pages to come to the conclusion, the appeals court affirmed the lower court, and decided that handwritten notes which “were never exchanged, shared with anyone, or otherwise available to anyone [other than] the person drafting the notes,” were notes intended for the personal use of the note taker, and “therefore were not “records” under Wis. Stat. § 19.32(2).”

Although the case was complicated, in the end it seems safe to say that if a person writes notes that they only intend for their own use to refresh their recollection and never share these notes with anyone else, that they are notes which are exempt from disclosure under the public records law because they are not actually “records.” Although this did not come up in the case, since they are not “records”, are they then not subject to the record retention laws?

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