Wisconsin Freedom of Information Council

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December: Release John Doe II case records now

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One of the most important court decisions in Wisconsin political history was argued largely in secret. The arguments were made in briefs that were heavily redacted or entirely shielded from public view. The evidence was hidden. Most of the litigants were anonymous.

The level of secrecy “is something I haven’t ever heard of happening in Wisconsin,” says David Schultz, a retired University of Wisconsin law professor who has watched the state Supreme Court for 40 years.

Unless the high court decides to unseal its files, the public will remain ignorant of the full facts and arguments it considered when it shut down the John Doe II investigation centered on Gov. Scott Walker’s campaign — known in court documents as “Unnamed Movant No. 1.”

Leaked and inadvertently unsealed records revealed that Walker raised large, undisclosed donations for ostensibly independent political groups, which in turn ran “issue ads” prior to the 2011 and 2012 Senate recall elections and the 2012 gubernatorial recall. These are unregulated, thinly veiled communications often intended to influence elections without expressly advocating for or against any candidate.

When two lawsuits aimed at killing the probe and a third filed by prosecutor Francis Schmitz attempting to save it made their way to the Supreme Court, the majority of justices agreed that most of the issues should be argued in secret to prevent “testimony which may be mistaken or untrue from becoming public.”

In July 2015, by a 4-2 vote, the court ended the probe, declaring that the conduct under investigation was not illegal and ordering that the evidence be returned to the subjects or destroyed. The court later amended its order to direct that the remaining evidence be turned over to the court. No one was ever charged.

But questions remain: What exactly did Walker do behind the scenes to fight the recalls? What evidence did prosecutors offer that two of the justices had conflicts of interest? Did prosecutors abuse their discretion in investigating activity that the subjects argued was protected political speech under the First Amendment?

And, importantly, did the court follow the law and precedent when it decided to shut down the investigation? Or did it, as Justice Shirley Abrahamson charged in her dissent, engage in a “blatant attempt to reach its desired result by whatever means necessary”?

In October, two nonprofit and nonpartisan groups — the Wisconsin Freedom of Information Council and the Wisconsin Center for Investigative Journalism — filed a public records request with Diane Fremgen, the clerk of the Supreme Court, asking that the case file be opened.

Fremgen denied the request, saying the court had directed her to maintain “certain filings” in the case under seal — even essential records such as motions and briefs filed with the court.

There are, we understand, concerns about releasing some exhibits attached to the court filings, on grounds that this evidence was illegally seized by prosecutors and should remain sealed. But Fremgen decided not to split those hairs, denying the entire request.

Abrahamson, for her part, has argued the case should be open, writing, “The public has a constitutional, statutory and common law right of access to judicial proceedings and judicial records.”

We agree.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Dee J. Hall is the group’s secretary and managing editor of the Wisconsin Center for Investigative Journalism.

Last Updated on Monday, 05 December 2016 08:41
 

November: Public must see police shooting videos

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Since the beginning of 2015, police in Wisconsin have killed 30 people, according to one media database. In Madison, Neenah, Eau Claire, Wausau, East Troy, Wauwatosa and Milwaukee, officers have used their power to its ultimate extent.

These officer-involved killings test the relationships between police officers and the public they are sworn to protect and serve. The whole community has an interest in knowing whether the police have acted appropriately, or in an unprofessional or biased manner.

One essential tool for making these judgments is the video taken by police vehicles and body cameras. But in Wisconsin, we have seen cases in which these public records are being withheld from public view, for months.

In 2014, Wisconsin enacted a law requiring independent investigations of officer-involved deaths, by the state Department of Justice or others. Nothing in the law prohibits the release of video soon after an incident. But Wisconsin officials typically refuse to release video unless and until a county district attorney decides not to bring charges against the officers involved.

That’s the status of video from the June killing of Jay Anderson in Wauwatosa and the August killing of Sylville Smith in Milwaukee. That’s too long. Once the key witnesses have been interviewed, the benefits of releasing all the video outweigh other considerations.

After the Smith shooting, Milwaukee’s mayor and police chief publicly commented on what the videos and still photos showed, while the public was not allowed to see for itself. That’s wrong.

It’s also wrong to allow the officers involved to view the video before they are interviewed, as is currently allowed. In July, the Milwaukee Fire and Police Commission approved a new policy giving the police chief or an outside investigator the discretion to let officers review video records.

The American Civil Liberties Union of Wisconsin has pushed for prompter release of these records. We do not buy the arguments that are made in support of keeping them under wraps—for instance, that it may make it harder for police defendants to find an unbiased jury. The extra effort to do so is not too great a burden for prosecutors, and a main reason for making police videos in the first place is to provide an additional layer of public accountability.

The Sylville Smith killing was followed by civil unrest in Milwaukee’s Sherman Park neighborhood. Given the fact that tension had been developing all summer in Sherman Park, we can’t be sure that the release of the Smith video would have prevented violence, but it probably would have fostered trust between the community and police. Withholding the video allowed speculation to take hold.

If police and civic leaders ask for trust in the aftermath of officer-involved killings, they must promptly let the public see the materials we need to verify their accounts.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Chris Ahmuty is executive director of the ACLU of Wisconsin.

Last Updated on Thursday, 03 November 2016 11:57
 

September: Coveted records exemption wrong for Wisconsin

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Over the July 4 weekend in 2015, members of the state Legislature sparked a public uproar by proposing last-minute changes to the state budget bill that would have created a “deliberative process” exception to Wisconsin’s long-cherished public records law. Government transparency advocates condemned the move, and the changes were hastily rescinded.

But the effort to shield records that are produced while crafting law and policy did not end there. The administration of Gov. Scott Walker continued to assert its ability to withhold these records under existing law.

In May 2015, the Center for Media and Democracy sued Walker for refusing a request for documents relating to prior failed legislation that sought to rewrite the University of Wisconsin’s mission statement, known as “the Wisconsin Idea.” Walker’s attorneys cited “deliberative process” and other reasons for denying access.

Shortly afterward, Madison attorney Katy Lounsbury filed suit along with her husband, Madison journalist Jud Lounsbury, and The Progressive magazine in response to a similar denial. The two cases were consolidated; I represented the Lounsburys in their action.

This May, Dane County Judge Amy Smith issued a decision rejecting the deliberative process defense as inconsistent with Wisconsin law. Friends of open government celebrated the ruling, which the state did not appeal, as a deterrent to other public officials who might try to claim that this loophole exists. But there still could be efforts to assert this privilege in the courts or through legislation.

The phrase “deliberate process” borrows from the terminology employed by federal courts when applying the federal Freedom of Information Act, the U.S. government’s public records legislation. Congress incorporated the “deliberative process” privilege in FOIA through what is known as Exemption 5 to that law.

Exemption 5 allows the federal officials to withhold certain “interagency” or “intra-agency” memoranda from the reach of FOIA requests. Courts have interpreted the exemption as permitting federal officials to deny public access to agency employees’ file memos, letters from employees of one agency to those of another, and consultants’ reports prepared for an agency.

These sorts of records are all routinely available under Wisconsin’s public records law.

In fact, as we noted in the lawsuits, the drafters of Wisconsin’s current public records law considered but rejected provisions similar to Exemption 5. That decision is consistent with the reputation that Wisconsin’s public records law enjoys as one of the nation’s broadest.

While the federal approach relies on a purported need for agencies to operate in secrecy in order to produce the best final work product, Wisconsin’s approach embodies an opposite philosophy—that outside scrutiny improves the process. As Judge Smith noted in her ruling, the effort to assert a deliberative process privilege “flies in the face of long-held policies underlying Wisconsin's open records law.”

Regardless of whether the next attempt to introduce it comes by judicial or legislative cover, a deliberative process privilege would allow agencies and state officials to keep us in the dark regarding the identities and motivations of those who draft the rules. From the thunder of the initial rally against deliberative process in July 2015 to the comparatively subdued but welcome reception for Judge Smith’s decision, that is the takeaway that we cannot forget.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council ( www.wisfoic.org ), a nonprofit group dedicated to open government. April Barker, the Council’s co-vice president, is an attorney with Schott, Bublitz & Engel of Brookfield.

Last Updated on Thursday, 01 September 2016 09:17
 

October: Schimel training videos should be released

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State Attorney General Brad Schimel has been a stand-up guy when it comes to open government issues in Wisconsin since he took over the Department of Justice in 2015.

He created an office of open government , held a summit on government transparency, worked to improve records request response times within his own office, and took forceful issue with some of his fellow Republicans’ attempts to gut the state’s public records law last year. In April, he was given the Political Openness Award by the Wisconsin Freedom of Information Council, which noted “how seriously he takes his statutory role to interpret and enforce the state’s openness laws.”

All of which makes Schimel’s stubbornness on the release of some training videos made for the DOJ in 2009 and 2013, when he was Waukesha County district attorney, all the more puzzling. The case, which has been wending its way through the courts, may appear to be just another political fight because it was the Democratic Party that brought suit. But look deeper and it’s clear that the public has a stake in the case, and that the videos should be released.

The Democratic Party wants the videos released to see if they show Schimel making any questionable comments. Schimel says they don’t, and the circuit judge who reviewed them in 2014 said they didn’t show any misconduct, the Journal Sentinel reported . But nevertheless, the judge and the appellate court have said the videos should be released under the state’s open records law. Arguments were made before the state Supreme Court last month.

Solicitor General Misha Tseytlin told the justices the videos should be withheld to protect law enforcement techniques and prevent victims from being re-traumatized by the release of sensitive information.

DOJ spokesman Johnny Koremenos said in an email that, “while the release of these videos would be more politically convenient for the attorney general and consistent with his track record as a strong proponent of open government, we aren’t going to play politics when the playbook for how to catch a predator is at risk of being released.” He noted that the decision not to release the videos was made by others within the DOJ before Schimel took office.

But former Assistant Attorney General Michael Bauer, the Democrats’ attorney, said criminals could learn more about how investigators do their work by watching television shows about catching bad guys. He also noted that one of the videos discusses a case that is already well-known.

And Christa Westerberg, an attorney and vice president of the Wisconsin Freedom of Information Council, said in an email last week that “Courts have to carefully scrutinize government claims that records can’t be released, given the law’s presumption in favor of disclosure.” Two courts have already found that release of the videos would not reveal sensitive law enforcement techniques and prior court rulings have affirmed the public’s right to know how law enforcement is performing, she said.

I don’t think Schimel is trying to pull a fast one. And I buy the argument that there’s probably nothing incriminating on the videos. What I don’t buy is that citizens have no right to see the videos because of some vague threat that criminals might benefit. Strikes me as very similar to the vague arguments used by federal authorities over the years to shut out the public because of “national security” concerns. The Supreme Court should order the release of the videos.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Ernst-Ulrich Franzen is the Journal Sentinel’s associate editorial page editor.

Last Updated on Monday, 03 October 2016 07:42
 

August: Supreme Court cases key to openness

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Wisconsin’s third branch of government is critical to open government. This year, the Wisconsin Supreme Court will hear three cases involving Wisconsin’s open records law, and could make important decisions involving access to the courts.

The court’s docket starts with a case about whether videos of law enforcement training sessions must be released to the public. The videos were requested from then-Waukesha District Attorney Brad Schimel by the Democratic Party of Wisconsin during the race for attorney general, which Schimel later won.

Lower courts rejected Department of Justice arguments that disclosing the videos would educate criminals about law enforcement practices and harm crime victims, because the information was already in the public sphere and did not identify victims.

The appeals court ruled that the DOJ “neither made the exceptional case required to shield public records from public view … nor overcame the presumption of complete public access to public records.” But the justices have agreed to take another look.

In another politically tinged case, the court will review whether Milwaukee County Sheriff David Clarke can black out information on federal forms used to request that arrested aliens be detained after state custody ends. An immigration rights group sued over these redactions, and lower courts agreed the records shoulds be fully available.

“[I]f it’s helping the public to identify that law enforcement … is violating federal or state law, that’s a pretty strong argument on behalf of [releasing the records],” said the circuit court.

Prior court rulings have recognized the importance of transparency in law enforcement. Let’s hope that view continues to prevail in Wisconsin.

Finally, the court will look at how much information must be revealed when the Department of Justice runs criminal background checks. A Milwaukee man whose name was used as an alias by a convicted criminal sued to block the release of records he said falsely suggested he was a criminal, impairing his employment and housing opportunities.

An appellate court ruled that the open records law did not allow such a claim. But one concurring judge suggested that the Department of Justice’s response was incomplete, because it did not also release an “innocence letter” clearing the plaintiff of the identified crimes. This is a simple fix that is more transparent for all concerned.

The high court also has a role in administering the court system, and in this capacity has encouraged the State Bar of Wisconsin to re-submit a 2009 petition to allow records of certain charges and convictions to be expunged, or blocked from release. The Wisconsin Freedom of Information Council believes these records should remain public.

In recent months, the court has itself stirred concerns by allowing parties in the lingering John Doe case to file entire motions, briefs and other documents under seal; but it rejected an effort by a state district attorney to block the release of records of a disciplinary probe.

The court, which begins its term next month, includes two new justices, representing a fresh chance to reaffirm the public’s right to know.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Christa Westerberg is the group’s co-vice president.

Last Updated on Monday, 01 August 2016 08:27
 
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