Media Placement Servs., Inc. v. Wis. Dep't of Transp.

Decision Date24 April 2018
Docket NumberAppeal No. 2017AP791
Citation382 Wis.2d 191,913 N.W.2d 224,2018 WI App 34
Parties MEDIA PLACEMENT SERVICES, INC., Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF TRANSPORTATION and Patrick Ferman, Administrator, Wisconsin Division of Motor Vehicles, Respondents-Respondents.
CourtWisconsin Court of Appeals

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Robert Theine Pledl and Daniel A. Peterson of McNally Peterson, S.C. of Milwaukee.

On behalf of the respondents-respondents, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Anthony D. Russomanno, assistant attorney general.

Before Brennan, P.J., Kessler and Brash, JJ.

KESSLER, J.

¶1 Media Placement Services (Media Placement) appeals the summary judgment order dismissing its mandamus action to access free motor vehicle accident reports from the Department of Transportation (DOT) using the DOT’s web portal. We affirm.

BACKGROUND

¶2 The following facts are not in dispute. Media Placement is a Louisiana-based company with an interest in motor vehicle accident data (accident reports) from the City of Milwaukee. For several years, Media Placement representatives would visit the Milwaukee Police Department’s Third District Police Station, request accident reports from particular dates, and inspect those reports free of charge. In June 2013, however, the Milwaukee Police Department suspended the practice of allowing Media Placement to view unredacted accident reports, citing privacy concerns pursuant to the Federal Drivers Policy and Protection Act. Media Placement continued to request accident reports from the Milwaukee Police Department, but was ultimately informed that the DOT became the custodian of accident reports and that subsequent requests must be made through the DOT.

¶3 In August 2014, counsel for Media Placement submitted a written request to the DOT for City of Milwaukee accident reports from certain dates. Through phone calls and emails, the DOT informed Media Placement of its access options. The DOT offers the following options to requesters seeking accident reports:

• Online requests, through the DOT’s website, for individual accident reports. The website requires requesters to know either an accident number, a document number, or both a driver’s license number and accident date. A $5.00 furnishing fee, plus a $1.00 convenience fee, is required for each report.
• Written, email, or phone requests for accident reports in which requesters can use more general search criteria, such as "all accident reports" from a particular date or location. The DOT generates the data, and for a fee, provides the data to the requester when the data is available.
• A weekly subscription service, in which the DOT contracts with high-volume requesters to provide bulk weekly data from accident reports. The DOT charges a $250.00 weekly fee for the subscription service.

¶4 Media Placement filed the mandamus action underlying this appeal. As related to this appeal, Media Placement argued that the DOT "failed and [is] still failing to provide [Media Placement] with access for the purpose of inspection without charge to Milwaukee Police Department accident reports," contrary to Wisconsin open records law.1 The mandamus action also argued that the DOT is "not authorized to charge a fee of $6.00 to inspect [Milwaukee Police Department] accident reports online." Media Placement asked the circuit court to "compel[ ] [the DOT] to permit ... [Media Placement] to inspect Wisconsin motor vehicle accident reports that originated in the City of Milwaukee upon request and without charge."

¶5 Both parties moved for summary judgment. Media Placement argued that the DOT unfairly limited the public’s access to accident report data because requesters using the DOT website must know specific search criteria and that the DOT was not authorized to charge for access to accident reports.2 The DOT countered that it did not limit the public’s access to either individual or bulk accident reports because it provides multiple methods of access, including a weekly subscription service for high-volume requesters such as Media Placement. The DOT also argued that pursuant to WIS. STAT. § 343.24(2m) (2015-16),3 it was authorized to charge a fee for online access to individual accident reports. The circuit court granted summary judgment in favor of the DOT and denied Media Placement’s motion. This appeal follows.

DISCUSSION

¶6 On appeal, Media Placement’s arguments focus primarily on its assertions that the DOT improperly limits access to individual accident reports by requiring an online requester to know specific information and that the DOT is not authorized to charge for those reports. A breakdown of Media Placement’s arguments, however, shows that Media Placement is actually challenging its inability to access individual accident reports: (1) in bulk, (2) online, (3) for free, and (4) using general search information such as dates and locations. In short, Media Placement wants access to high volumes of individual accident reports using the DOT’s online database and does not want to pay for the reports. In asserting its arguments, Media Placement extensively discusses Wisconsin’s open records law and challenges the applicability of WIS. STAT. § 343.24(2m) —the statute authorizing the DOT to charge a fee for furnishing certain motor vehicle records. We conclude that Media Placement is not entitled to free access to the DOT’s database because both Wisconsin open records law and statutory authority permit the DOT to charge access fees for certain records and because case law has held that the right to access records does not extend to the right to access databases. See WIREdata, Inc. v. Village of Sussex , 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736.

Standard of Review

¶7 " We independently review whether the circuit court correctly granted summary judgment’ " to the DOT. See Journal Times v. Police & Fire Comm’rs Bd. , 2015 WI 56, ¶ 42, 362 Wis. 2d 577, 866 N.W.2d 563 (citation omitted). "Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (citation and quotation marks omitted).

¶8 "A writ of mandamus may be used to compel public officers to perform duties arising out of their office and presently due to be performed." Pasko v. City of Milwaukee , 2002 WI 33, ¶ 24, 252 Wis. 2d 1, 643 N.W.2d 72 (citation and quotation marks omitted). "In order for a writ of mandamus to be issued, four prerequisites must be satisfied: (1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law.’ " Id. (citation omitted).

¶9 "Where a circuit court, determining a petition for writ of mandam[u]s, has interpreted Wisconsin’s open records law, see WIS. STAT. §§ 19.31 through 19.39, and has applied that law to undisputed facts, we review the circuit court’s decision de novo ." State ex rel. Milwaukee Police Ass’n v. Jones , 2000 WI App 146, ¶ 11, 237 Wis. 2d 840, 615 N.W.2d 190. We do so ever mindful of the legislature’s declaration of policy that the open records law must " ‘be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business.’ " Id. (citing Sec. 19.31 ) (emphasis omitted).

Wisconsin Open Records Law

¶10 "[T]he legislature has created a statutory presumption that all government records are public. [ WISCONSIN ] STAT. § 19.31 provides that §§ 19.32 to 19.37 (the Wisconsin [open] records law) ‘shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.’ " Portage Daily Register v. Columbia Cty. Sheriff’s Dep’t , 2008 WI App 30, ¶ 10, 308 Wis. 2d 357, 746 N.W.2d 525 (citing Wisconsin open records law). The presumption is not absolute. "This strong presumption of public access may give way to statutory or specified common law exceptions, or, if there is an overriding public interest in keeping the record confidential." Id. , ¶ 11.

¶11 In addition to statutory or common law exceptions to disclosure, the open records law defers to other statutes that specifically authorize records custodians to charge fees for records that differ from the fees that the open records law itself authorizes. WISCONSIN STAT. § 19.35(3)(a) states: "An authority may impose a fee upon the requester of a copy of a record which may not exceed the actual, necessary and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law." "As a result, the authority may not make a profit on its response to an open records request." WIREdata , 310 Wis. 2d 397, ¶ 103, 751 N.W.2d 736. However, "an authority under the open records law ‘is not required, by itself, to bear the costs of producing documents in response to [an open records law] request.’ " Id. , ¶ 104 (citation omitted). "[U]nder WIS. STAT. § 19.35(3), an authority may impose a fee on the records requester ‘for the location, reproduction or photographic processing of the requested records, but the fee may not exceed the actual, necessary and direct cost of complying with the open records requests.’ " WIREdata , 310 Wis. 2d 397, ¶ 104, 751 N.W.2d 736 (citation omitted).

¶12 The DOT receives approximately 520 accident reports per business day, or about 2600 per week. It also receives over 34,000 requests for reports.4 The legislature obviously recognized the cost of record maintenance and reproduction for agencies required to comply with open records requests, such as...

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