City of New Berlin, WI
Waukesha County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Common Council of the City of New Berlin 10-10-2000 by Ord. No. 2124 as Sec. 3.06 of the Municipal Code. Amendments noted where applicable.]

§ 59-1 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:
AUTHORITY
Any of the following city entities having custody of a city record: an office, elected official, agency, board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance, rule or order; or a formally constituted subunit of the foregoing.
CUSTODIAN
That officer, department head, division head or employee of the city designated under § 59-3 or otherwise responsible by law to keep and preserve any city records or file, deposit or keep such records in his or her office, or is lawfully in possession or entitled to possession of such public records and who is required by this chapter to respond to requests for access to such records.
RECORD
Any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which 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 (including computer tapes), computer printouts and optical disks. "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 which 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 which are available for sale, or which are available for inspection at a public library.
[Amended 6-19-2001 by Ord. No. 2142]

§ 59-2 Duty to maintain records.

A. 
Except as provided under § 59-7, each officer and employee of the city shall safely keep and preserve all records received from his or her predecessor or other persons and required by law to be filed, deposited or kept in his or her office or which are in the lawful possession or control of the officer or employee or his or her deputies, or to the possession or control of which he or she or they may be lawfully entitled as such officers or employees.
B. 
Upon the expiration of an officer's term of office or an employee's term of employment, or whenever the office or position of employment becomes vacant, each such officer or employee shall deliver to his or her successor all records then in his or her custody and the successor shall receipt therefor to the officer or employee, who shall file such receipt with the City Clerk. If a vacancy occurs before a successor is selected or qualifies, such records shall be delivered to and receipted for by the Clerk, on behalf of the successor, to be delivered to such successor upon the latter's receipt.

§ 59-3 Legal custodians.

A. 
Each elected official is the legal custodian of his or her records and the records of his or her office, but the official may designate an employee of his or her staff to act as the legal custodian.
B. 
Unless otherwise prohibited by law, the City Clerk or the Clerk's designee shall act as legal custodian for the City Council and for any committees, commissions, boards or other authorities created by ordinance or resolution of the City Council. This shall not include the Police Department, whose custodian is the Chief; nor the Fire Department, whose custodian is the Chief.
C. 
For every authority not specified in Subsections A or B, the authority's chief administrative officer is the legal custodian for the authority, but the officer may designate an employee of his or her staff to act as the legal custodian.
D. 
Each legal custodian shall name a person to act as legal custodian in his or her absence or the absence of his or her designee.
E. 
The legal custodian shall have full legal power to render decisions and to carry out the duties of an authority under Subchapter. II of Ch. 19, Wis. Stats., and this chapter. The designation of a legal custodian does not affect the powers and duties of an authority under this chapter.

§ 59-4 Public access to records.

A. 
Except as provided in § 59-6, any person has a right to inspect a record and to make or receive a copy of any record as provided in § 19.35(1), Wis. Stats.
B. 
Records will be available for inspection and copying during all regular office hours.
C. 
If regular office hours are not maintained at the location where records are kept, the records will be available for inspection and copying upon at least 48 hours' advance notice of intent to inspect or copy.
D. 
A requester shall be permitted to use facilities comparable to those available to city employees to inspect, copy or abstract a record.
E. 
The legal custodian may require supervision during inspection or may impose other reasonable restrictions on the manner of access to an original record if the record is irreplaceable or easily damaged.
F. 
A requester shall be charged a fee to defray the cost of locating and copying records as follows:
(1) 
The cost of photocopying shall be $0.50 per page. Such cost has been calculated not to exceed the actual, necessary and direct cost of reproduction.
(2) 
If the form of a written record does not permit copying, the actual and necessary cost of photographing and photographic processing shall be charged.
(3) 
The actual full cost of providing a copy of other records not in printed form on paper, such as films, computer printouts and audiotapes or videotapes, shall be charged.
(4) 
If mailing or shipping is necessary, the actual cost thereof shall also be charged.
(5) 
There shall be no charge for locating a record unless the actual cost therefor exceeds $50, in which case the actual cost shall be determined by the legal custodian and billed to the requester.
(6) 
The legal custodian shall estimate the cost of all applicable fees and may require a cash deposit adequate to assure payment, if such estimate exceeds $5.
(7) 
Elected and appointed officials of the city shall not be required to pay for public records they may reasonably require for the proper performance of their official duties.
(8) 
The legal custodian may provide copies of a record without charge or at a reduced charge where he or she determines that waiver or reduction of the fee is in the public interest.
G. 
Pursuant to § 19.34, Wis. Stats., and the guidelines therein listed, each authority shall adopt, prominently display and make available for inspection and copying at its offices, for the guidance of the public, a notice containing a description of its organization and the established times and places at which, the legal custodian from whom, and the methods whereby, the public may obtain information and access to records in its custody, make requests for records, or obtain copies of records, and the costs thereof. Each authority shall also prominently display at its offices, for the guidance of the public, a copy of this chapter. This subsection does not apply to members of the City Council.

§ 59-5 Access procedures.

A. 
A request to inspect or copy a record shall be made to the legal custodian. A request shall be deemed sufficient if it reasonably describes the requested record or the information requested. However, a request for a record without a reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request. A request may be made orally, but a request must be in writing before an action to enforce the request is commenced under § 19.37, Wis. Stats. Except as provided below, no request may be refused because the person making the request is unwilling to be identified or to state the purpose of the request. No request may be refused because the request is received by mail, unless prepayment of a fee is required under § 59-4F(6). A requester may be required to show acceptable identification whenever the requested record is kept at a private residence or whenever security reasons or federal law or regulations so require.
B. 
Each custodian, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority's determination to deny the request in whole or in part and the reasons therefor. If the legal custodian, after conferring with the City Attorney, determines that a written request is so general as to be unduly time consuming, the party making the request may first be required to itemize his or her request in a manner which would permit reasonable compliance.
C. 
A request for a record may be denied as provided in § 59-6. If a request is made orally, the request may be denied orally unless a demand for a written statement of the reasons denying the request is made by the requester within five business days of the oral denial. If a written request is denied in whole or in part, the requester shall receive a written statement of the reasons for denying the request. Every written denial of a request shall inform the requester that if the request for the record was made in writing, then the determination is subject to review upon petition for a writ of mandamus under § 19.37(1), Wis. Stats., or upon application to the Attorney General or a district attorney.

§ 59-6 Limitations on right to access.

A. 
As provided by § 19.36, Wis. Stats., the following records are exempt from inspection under this chapter:
(1) 
Records specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law.
(2) 
Any record relating to investigative information obtained for law enforcement purposes if federal law or regulations require exemption from disclosure or if exemption from disclosure is a condition to receipt of aids by the state.
(3) 
Computer programs, although the material used as input for a computer program or the material produced as a product of the computer program is subject to inspection.
(4) 
A record or any portion of a record containing information qualifying as a common law trade secret.
(5) 
Employment records under § 103.13, Wis. Stats.
B. 
As provided by § 43.30, Wis. Stats., public library circulation records are exempt from inspection under this chapter.
C. 
In responding to a request for inspection or copying of a record which is not specifically exempt from disclosure, the legal custodian, after conferring with the City Attorney, may deny the request, in whole or in part, only if he or she determines that the harm to the public interest resulting from disclosure would outweigh the public interest in full access to the requested record. Examples of matters for which disclosure may be refused include, but are not limited to, the following:
(1) 
Records obtained under official pledges of confidentiality which were necessary and given in order to obtain the information contained in them.
(2) 
Records of current deliberations after a quasi-judicial hearing.
(3) 
Records of current deliberations concerning employment, dismissal, promotion, demotion, compensation, performance or discipline of any city officer or employee, or the investigation of charges against a city officer or employee, unless such officer or employee consents to such disclosure.
(4) 
Records concerning current strategy for crime detection or prevention. Among, but not limited to, the reasons for denying all or parts of police records are the following:
(a) 
Portion contains confidential information furnished only by a confidential source who has requested anonymity as a condition of relaying this information.
(b) 
Portion would identify a confidential source and this would jeopardize a criminal investigation.
(c) 
Portion would identify a confidential source and this would endanger the life or physical safety of this source.
(d) 
Portion would disclose the contents of a communication between executive personnel on matters of policy, the disclosure of which would inhibit the frank and full discussion of matters necessary to set policy.
(e) 
Portion will jeopardize an ongoing criminal investigation in that it will disclose evidence.
(f) 
Portion will impair the ability of the investigating officers to function effectively in that it will disclose techniques used in investigations.
(g) 
Portion names law enforcement personnel. Disclosure will impair their effectiveness in their duties and subject them to harassment and physical injury.
(h) 
Portion identifies citizens. Disclosure may cause undue damage to the reputation of citizens in the community and violate the right to privacy under § 895.50, Wis. Stats.
(i) 
Information is unsubstantiated; if released, it would unduly damage the reputation of the individual or individuals involved.
(j) 
Portion identifies a person. Disclosure of such persons in this context would be likely to have a substantial adverse effect on their reputation.
(k) 
Portion identifies a juvenile. Disclosure of such person and information is in violation of § 48.396, Wis. Stats.
(l) 
Portion contains employee performance evaluation data.
(m) 
Portion contains information not made public as part of a written public speech, presentation or press release.
(5) 
Records of current deliberations or negotiations on the purchase of city property, investing of city funds or other city business whenever competitive or bargaining reasons require nondisclosure.
(6) 
Financial, medical, social or personal histories or disciplinary data of specific persons which, if disclosed, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such history or data.
(7) 
Communications between legal counsel for the city and any officer, agent or employee of the city, when advice is being rendered concerning strategy with respect to current litigation in which the city or any of its officers, agents or employees is or is likely to become involved, or communications which are privileged under § 905.03, Wis. Stats.
D. 
If a record contains information that may be made public and information that may not be made public, the custodian of the record shall provide the information that may be made public and delete the information that may not be made public from the record before release. The custodian shall confer with the City Attorney prior to releasing any such record and shall follow the guidance of the City Attorney when separating out the exempt material. If in the judgment of the custodian and the City Attorney there is no feasible way to separate the exempt material from the nonexempt material without unreasonably jeopardizing nondisclosure of the exempt material, the entire record shall be withheld from disclosure.

§ 59-7 Destruction of records.

A. 
City officers may destroy the following nonutility financial records of which they are the legal custodians and which are considered obsolete, after completion of any required audit by the Bureau of Municipal Audit or an auditor licensed under Ch. 442, Wis. Stats., but not less than seven years after payment or receipt of any sum involved in the particular transaction, unless a shorter period has been fixed by the State Public Records Board pursuant to § 16.61(3)(e), Wis. Stats., and then after such shorter period:
(1) 
Bank statements.
(2) 
Canceled checks.
(3) 
Receipt forms.
(4) 
Vouchers, etc.
B. 
City officers may destroy the following utility records of which they are the legal custodians and which are considered obsolete after completion of any required audit by the Bureau of Municipal Audit or an auditor licensed under Ch. 442, Wis. Stats., subject to State Public Service Commission regulations, but not less than seven years after the record was effective unless a shorter period has been fixed by the State Public Records Board pursuant to § 16.61(3)(e), Wis. Stats., and then after such a shorter period, except that water stubs, receipts of current billings and customers' ledgers may be destroyed after two years:
(1) 
Contracts.
(2) 
Excavation permits.
(3) 
Inspection records.
C. 
City officers may destroy the following records of which they are the legal custodian and which are considered obsolete, but not less than seven years after the record was effective unless another period has been set by statute, and then after such a period, or unless a shorter period has been fixed by the State Public Records Board pursuant to § 16.61(3)(e), Wis. Stats., and then after such a shorter period:
(1) 
Old insurance policies.
(2) 
Election notices.
(3) 
Canceled registration cards.
D. 
Unless notice is waived by the State Historical Society, at least 60 days' notice shall be given the State Historical Society prior to the destruction of any record as provided by § 19.21(4)(a), Wis. Stats.
E. 
Any video or audiotape recordings of a governmental meeting of the City may be destroyed, erased or reused no sooner than 90 days after the minutes of the meeting have been approved and published if the purpose of the recording was to take minutes of the meeting. Video and audio recordings which are made for any other purpose shall be retained for a period of not less than seven years from the date of the recording unless another period has been set by statute, in which case that retention period shall apply.
[Amended 8-28-2007 by Ord. No. 2352]

§ 59-8 Preservation of microfilm, optical imaging or electronic formatting.

[Amended 5-28-2013 by Ord. No. 2503]
Any City officer or the director of any department or division of City government may, subject to the approval of the Mayor and Common Council, keep and preserve public records in his her possession by means of microfilm or other reproductive device, optical imaging or electronic formatting. Such records shall meet the standards for said reproduction as set forth in §§ 16.61(7) and 16.612, Wis. Stats. Any reproduction of a record authorized to be reproduced under this section shall be considered an original record for all purposes. Such records shall be preserved, along with other files of the department or division, and shall be open to public inspection and copying according to the provisions of state law, as well as §§ 59-4 through 59-6 of this chapter.