Opinion No. Oag 76-79, (1979)

ANN HANEY, Secretary Department of Regulation Licensing

Your predecessor asked three questions. The first question is:

Is the Department of Regulation and Licensing permitted to prepare and sell to private parties mailing labels by causing a computer print out of the names and addresses of licensees in the various regulated groups?

The answer to this question is no.

Administrative agencies have only such powers as are expressly granted or necessarily implied, and any power sought to be exercised must be found within the four corners of the statute under which the agency proceeds. American Brass Co. v. StateBoard of Health, 245 Wis. 440, 15 N.W.2d 27 (1944).

In 59 Op. Att'y Gen. 145 (1970), it was stated that then sec.16.74, Stats. (1973), would permit the sale of computer programs, as distinguished from printouts or data, as surplus, provided that they were not created for resale purposes. In 63 Op. Att'y Gen. 302 (1974), it was stated that the Department of Administration probably had authority under sec. 19.21 (1) and (2), Stats., to provide a private corporation with camera-ready copy, which is the product of printout of computer-stored public records, if the costs were minimal, but that the Department could not contract on a continuing basis for the furnishing of such service.

Unlike the Department of Administration situation, your Department already has on hand lists of the licensees' names and addresses. Where a list is available, it is a public record and is subject to inspection and copying, and the list can be furnished to any person at a reasonable copying charge. 61 Op. Att'y Gen. 297 (1972). Also see secs. 19.21 (2) and 16.61 (11)(a), Stats. The custodian, however, is not required to make a search or compile a list or report. 52 Op. Att'y Gen. 8 (1963).

Finally, the gummed mailing labels themselves do not appear to be the type of book report, pamphlet, or document which is subject to sale by the Department or through the Department of Administration. See secs. 16.79 (2), 20.908, 35.87, and 35.91, Stats. If stocks of mailing labels had been preprinted, those which were not needed could be sold as surplus. It would be improper to create a surplus for the purposes of resale.

Your second question is:

Do the public records statutes, sec. 19.21, Stats., et seq., require the Department to provide mailing labels upon citizen request?

The answer is no.

Section 19.21, Stats., grants any person the right to inspect and copy or duplicate public records at his "own expense," but such person does not have a right to utilize the equipment of the state to copy or duplicate. The statute's principal purpose is concerned with openness in government and a right to know. It was not intended to be utilized to enable any person to secure the same final product, such as a gummed mailing label, properly addressed, as the state secures. I am of the opinion that the labels themselves, once produced, are public records. See sec.16.97 (3), Stats., as created by ch. 29, sec. 98, Laws of 1977. Where the information is stored in a computer and such memory bank is the only source of the material, any person can within reasonable limits insist that there be a run so that such person can inspect and copy the information therein contained. The Department, however, has lists of the names and addresses of the various professional persons licensed which contain the same information as is on the mailing labels. As noted, a custodian is not required by sec. 19.21, Stats., to make a search or compile a list or report. 52 Op. Att'y Gen. 8 (1963).

Your third question is:

May the Department deny requests for mailing labels on the basis that providing them is likely to result in the mailing of unsolicited matters to licensees and that the benefit to the public of providing them is outweighed by the licensees' interest in privacy?

The answer is no.

As noted, the Department is without authority to furnish mailing labels to private persons or organizations. In any event, since the right to inspect, copy, or duplicate does not depend on the motive or purpose of the requester, it could not be denied on the basis of the reasons set forth in your question.

BCL:CDH