Wiredata, Inc. v. Village of Sussex
| Citation | 2007 WI App 22,729 N.W.2d 757 |
| Decision Date | 03 January 2007 |
| Docket Number | No. 2006AP174.,No. 2005AP1473.,No. 2006AP175.,2005AP1473.,2006AP174.,2006AP175. |
| Parties | WIREDATA, INC., Plaintiff-Respondent, v. VILLAGE OF SUSSEX and Village of Sussex Custodian, Defendants-Co-Appellants,<SMALL><SUP>†</SUP></SMALL> Grota Appraisals, L.L.C., Michael L. Grota and Assessment Technologies of WI, L.L.C., Defendants-Appellants.<SMALL><SUP>†</SUP></SMALL> WIREdata, Inc., Plaintiff-Appellant, v. Village of Thiensville, Grota Appraisals, L.L.C., Michael L. Grota, and Assessment Technologies of WI, L.L.C., Defendants-Respondents.<SMALL><SUP>†</SUP></SMALL> WIREdata, Inc., Plaintiff-Appellant, v. City of Port Washington and Matthies Assessments, Inc., Defendants-Respondents, American Family Insurance Company, Intervenor. |
| Court | Court of Appeals of Wisconsin |
On behalf of the defendants-appellants and defendants-respondents Gota Appraisals, Michael Grota and Assessment Technologies of WI, L.L.C., the cause was submitted on the briefs of and oral argument by Daniel R. Johnson of Ryan Kromholz & Manion, S.C., Milwaukee.
On behalf of the defendants-co-appellants and defendants-respondents Village of Sussex and Village of Sussex Custodian and City of Port Washington, the cause was submitted on the briefs of Raymond J. Pollen and Erin Fay of Crivello, Carlson & Mentkowski, S.C., Milwaukee. There was oral argument by Erin Fay.
On behalf of the plaintiff-appellant and plaintiff-respondent WIREdata, Inc., the cause was submitted on the briefs of Alan H. Deutch and Emily Canedo of Deutch Law Offices, SC, Fox Point. There was oral argument by Alan Deutch.
On behalf of the defendants-respondents Village of Thiensville, the cause was submitted on the brief of Steven M. Cain and Deborah S.R. Hoffmann of Housemann & Feind, L.L.P., Grafton. There was oral argument by Steven M. Cain.
On behalf of the defendants-respondents Matthies Assessments, Inc., the cause was submitted on the brief of and oral argument by Maile E. Beres of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee.
Nonparty briefs were filed by Jennifer L. Peterson of LaFollette Godfrey & Kahn, Madison, for Attorneys for the Wisconsin Newspaper Association and the Wisconsin Freedom of Information Council; Daniel M. Olson of League of Wisconsin Municipalities, Madison; and Andrew T. Phillips of Stadler, Centofanti & Phillips, S.C., Mequon, for Attorneys for Wisconsin Counties Association.
Before BROWN, NETTESHEIM and ANDERSON, JJ.
Nearly six years ago, WIREdata, Inc. filed open records requests with the three municipalities before us in this appeal. WIREdata sought the property assessment records in the format created and maintained by the municipalities' independent contractor assessors in a computer database. We hold that the open records law allows WIREdata the opportunity to access that database in order to examine and copy the property assessment records. Therefore, the municipalities committed open records law violations when they denied WIREdata such access and instead provided it with a "PDF," or portable document file.
¶ 2 WIREdata urges this court to hold both the municipalities and their independent contractor assessors responsible for failing to properly respond to its open records request. We hold that the open records law contemplates holding the municipalities, but not their independent contractors, responsible for the open records law violations. The municipalities are the statutory authorities obligated to uphold the letter and spirit of the open records law and they cannot evade their duties by shifting the creation and maintenance of their assessment records to their independent contractors. We also reject all challenges to the sufficiency of the open records requests and the existence of the denials of those requests.
¶ 3 Accordingly, in the Village of Sussex case, we affirm the circuit court's order to the extent that it holds that (1) Sussex is an authority and must be held responsible for the open records law violations; (2) WIREdata submitted a valid open records request, which Sussex improperly denied; (3) the PDF failed to comply with the open records law; (4) the open records law demands access to the computer database; and (5) WIREdata is entitled to actual, reasonable and customary fees and costs. We reverse that order to the extent it holds the Sussex independent contractor assessor responsible for WIREdata's reasonable costs and attorney fees and remand for proceedings to determine the appropriate costs and fees. In the Village of Thiensville and City of Port Washington cases, we affirm the court's order to the extent that it holds that Thiensville and Port Washington are authorities under the open records law. We reverse the court's order to the extent that it holds WIREdata's open records requests were insufficient and that the PDF satisfied its requests in any event. We remand for the court to determine appropriate costs and fees for Thiensville's and Port Washington's open records violations.
¶ 4 We begin with a recitation of the facts surrounding the open records requests and subsequent litigation involving each municipality. For the sake of clarity, we will set forth such facts for each municipality separately, but we will refer back to our discussions of the other cases where appropriate.
¶ 5 Sussex contracted with Grota Appraisals, LLC, which is owned by Michael L. Grota, to conduct its property assessments from January 1, 2000, to December 31, 2004. Typically, prior to the advent of computers, assessors would visit the properties and make handwritten notations about the properties on paper cards called "property record cards." Technological advancements now allow Grota Appraisals appraisers to input the raw property appraisal data from the property record cards into a computer program called Market Drive.
¶ 6 Assessment Technologies of WI, LLC, which is also owned by Michael Grota, developed and copyrighted Market Drive and licenses the software to property appraisers such as Grota Appraisals. The software program, in conjunction with a Microsoft database program (Microsoft Access), collates and arranges the collected information in a multitude of tables and reports for various categories of properties. Grota Appraisals has sublicensed to Sussex certain read-only capabilities of Market Drive software. As a result, Sussex has the ability to print whatever tables and reports that the Market Drive software is configured to assemble.
¶ 7 On April 20, 2001, WIREdata sent registered letters to the Sussex village assessor and village clerk, custodian of records, which stated:
This is to formally request an electronic/digital copy of the detailed real estate property records (showing the specific characteristics of each parcel and the improvements thereupon) used and/or maintained by the Assessor in determining the proper assessments for each parcel within the Village of Sussex.
WIREdata, a wholly owned subsidiary of Multiple Listing Service, Inc., sought to obtain data regarding specific properties in Sussex, and the other municipalities, for purposes of making the information available to real estate brokers. Sussex directed WIREdata to Grota Appraisals. Grota Appraisals in turn forwarded the matter to Andrew Pelkey. Pelkey owns Impact Consultants, Inc., the private computer programming firm that Assessment Technologies contracted with to program the Market Drive software.
¶ 8 On April 24, 2001, WIREdata sent a letter to Sussex's counsel in which it offered Wisconsin's open records law as the legal basis for the request and for the potential mandamus action should Sussex deny its request. On or around May 4, Pelkey contacted WIREdata to arrange the transfer of the requested information. WIREdata's vice president, Thomas Curtis, averred that at the time it was his understanding that Pelkey "was going to help [WIREdata] get the data."
¶ 9 In a letter dated May 4, Pelkey informed Sussex's counsel that he believed it would be very difficult to export data from the Market Drive software to a usable Microsoft Word format. Pelkey stated that providing the information in any format would be very time consuming. Pelkey also wrote that the raw data used by Market Drive cannot be copied because of the copyright.
¶ 10 Curtis sent Pelkey an email in which he wrote, A data layout specifies the order of the categories of information.
¶ 11 Pelkey sent an email to Curtis outlining the cost and terms of producing the records of the municipalities using the Market Drive software. According to Pelkey, WIREdata would need to pay a $6600 one-time fee to program, test and export the data; a $.50 per parcel charge over and above the $6600 programming fee; and a $.15 per parcel annual update fee. Pelkey concluded his email with the following:
[T]he costs quoted here assume that you are not reselling the data in mass to another source. This data is meant for you and your subscribers to view. If you want to "add value" to any part of this data and distribute it in mass to another company, you will need to charge your customer for our fee in addition to your fees for your added value.
¶ 12 On May 21, WIREdata's counsel wrote a letter to Sussex's counsel in which he declared Pelkey's response "unacceptable." He claimed that the assessor was asking for far more than the actual and necessary costs for copying the data. In support, he cited "the attempt to restrict my client's use of the data once it is transferred."
¶ 13 On May 22, Sussex's counsel sent a letter to Michael Grota asking him to explain how the costs and fees set forth in Pelkey's email could be "justified as the `actual, necessary and direct costs' of producing these public records." Sussex's counsel cautioned Grota...
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