According to Section 19.36(3) of the Wisconsin Statutes, the records of those entering into contracts with government constitute public records, and therefore open to public inspection upon request, subject to specific exemptions set forth in the law. As governments generally, and particularly local governments, look more and more to private contractors to perform or assist in performing public services, businesses that enter into such agreements must be aware of the ramifications of this statute.
This statute has not been construed to apply to any record of a public contractor, but rather to records which are specifically related to performance of the contract. As those records are deemed public records, they should not be destroyed except in accordance with the law (normally, public records are to be retained at least 7 years). Also, since such records are, in effect, presumptively open for inspection by the public, businesses which contract with government must understand that a public records request applicable to such records may be used as an informal discovery device by parties seeking to make a claim against the business or the government.
No reason need be given for a public records request, which may be made verbally or in writing. Denying access to a public record can result in action through the local District Attorney’s office, or action by the requestor to compel production. Successful requestors are entitled to recover their attorneys fees.
Thus far, the contracting government has been held liable when a contractor wrongfully refuses access to a public record. Absent a change in the law, it is not likely the contractor will be held to be a legal custodian of records. However, savvy municipalities and their attorneys may want to include in any contract provisions by which the contracting business agrees to comply with the law, and also indemnifies and holds the government harmless from any claims under the law.
Businesses entering into contracts with governments for services which may be considered performing or assisting in the performance of public services should give careful consideration to the possibility that their records may be open for public inspection, unless an exemption applies, what records may be available, and how their contracts with government may be impacted by Section 19.36(3).