Most candidates for public office, when asked, will pledge their support for open and transparent government. The real question is: Are they committed to fixing problems and expanding what information is available?
Recently, the Wisconsin Freedom of Information Council drew up a “Legislative wish-list for open government” — changes in state law to improve access and accountability. As the various candidates in this fall’s elections crow about how open they will be, here are some specific proposals they could and should be asked about.
Recording closed meetings: Currently, there is no way to ensure that public bodies are going into closed session for legitimate reasons. The council favors a statutory requirement that closed meetings be recorded on audio or video, allowing for judicial review if their legality is challenged. Other states, including Iowa and Illinois, have similar statutes.
End finalist disclosure law loophole: Wisconsin’s open records law requires public bodies to disclose the names of finalists, typically at least five, for any nonclassified state position or local public office. But the law does not specify when these names must be released, prompting some authorities to wait until after a selection is made. This loophole should be plugged.
Make state lawmakers subject to records retention rules: Current state law prescribes mandatory minimum retention rules for all state and local government officials, except members of the Legislature. A mayoral aide in a small city must preserve correspondence but a state lawmaker can destroy it at will. The law should be changed to end this exception, as one lawmaker attempted to do in 2011. For now, lawmakers should pledge to voluntarily retain relevant records.
Make the Legislature subject to the state’s open meetings law: The state Supreme Court, in its 2011 ruling Ozanne v. Fitzgerald, decided that the Legislature’s adherence to the open meetings law is not subject to judicial review, effectively exempting the Legislature from the law. The council supports legislation, recently introduced as 2013 Assembly Resolution 17 and Assembly Joint Resolutions 61 and 62, to make the Legislature expressly subject to the law.
End the exemption for prosecutor records: A 1991 Wisconsin Supreme Court ruling declared prosecution files exempt from the public records law. In 2005 then-Gov. Jim Doyle, a former state Attorney General, announced his support for ending this exemption, but no legislation to accomplish this has been introduced.
Update the location cost threshold: When the state’s open records law passed in 1981, it stated that custodians could charge only for location fees of $50 or more. The clear legislative intent was to give requesters an initial $50 of free location effort, reserving this charge for larger requests. Adjusted for inflation, $50 in 1981 would be more than $125 today. The council supports updating this threshold amount.
The council also supports changes in the law to address problems posed by modern technology — for instance, to ban members of public bodies from using emails and text messages to chat with each other during meetings about the issues under discussion. If they have something to say about an issue while the meeting is going on, they should say it openly.
Finally, the council believes there is a common-sense change that could address concerns about the alleged misuse of online court records. Rather than end public access to select records, as lawmakers of both parties perennially propose, let’s make it mandatory for employers and landlords who use these records to screen applicants to disclose this, as a 2013 bill proposed. More information, we feel, is always better than less.
Your Right to Know is a monthly column distributed by the a nonprofit group dedicated to open government. Bill Lueders is the Council's president.