Wisconsin Freedom of Information Council

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July: A wish-list for open government

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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 Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Bill Lueders is the Council's president.

Last Updated on Tuesday, 01 July 2014 11:21
 

June: Media need photos to tell the story

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In early May the newspaper I work for, the Wisconsin State Journal, requested the official portraits of the Madison police officers involved in the fatal shooting a few days earlier of a man police say had just stabbed two women to death.

Although he’d released the officers’ names, Madison Police Chief Mike Koval initially balked at releasing their photos. Persuaded by the city attorney that he had no grounds to withhold them, Koval relented.

But in a letter to the media, which he also posted on his blog, Koval expressed his misgivings, asking whether the officers had had “sufficient time and resources to begin the arduous process of healing in the wake of having had to take the life of another.”

“Is it truly fair (or relevant) that we see the face of an officer that was not a public figure at noon but then elevated to that status by 1 p.m. after a shooting has occurred?” Koval wrote. “How has the public been deprived (or served) by seeing a photo of the officer when the name has already been revealed?”

Koval’s reasons for initially withholding the photos reflect a very real, human concern for one’s fellow workers. Helpfully, Koval added that he was not trying to thwart the media’s oversight of the department.

Yet, Wisconsin’s open records law is written to avoid such arbitrary decisions. Legislators intended that the law be “construed in every instance with a presumption of complete public access,” with records being denied “only in an exceptional case.”

There’s no question the photos are public. But is publishing them fair?

First, that is a decision for news organizations alone to make. One Madison network — WMTV (Ch. 15) — chose not to run the photos. But no one is served when records custodians pre-empt those decisions for us.

Running pictures of people with our stories is what we do. It helps convey the humanity and personality of the people we write about. Photos are news content, the same as stories, headlines and graphics.

That’s especially true when a person is the subject of a story. Prominently featuring someone in an article but not showing his or her likeness only serves to cloak the person in a state of quasi-anonymity. A face makes the person real.

Like most people caught up in traumatic events, these officers didn’t choose to have their names and photos in the newspaper. But they also know they run a higher-than-normal risk of becoming involved in something newsworthy, like the use of deadly force. It’s part of the job they signed on to do.

Sometimes, that scrutiny can take the form of harassment, as Koval noted in his letter, with officers in high-profile events being subjected to cruel comments. Yet, the boorish behavior of a few doesn’t change the fact that these officers are accountable — to the law and their fellow citizens.

From the little we know of what happened the day Madison officers shot and killed Londrell Johnson — wielding the knife he’d just used to slay two women and stab a third person — I think most people would want to know who these officers were, not to humiliate them but to thank them.

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. Phil Brinkman is city editor of the Wisconsin State Journal.

Last Updated on Thursday, 29 May 2014 07:33
 

April: AG’s office could do more on openness

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Should enforcement of Wisconsin’s open records and open meetings laws depend on individual citizens having to file often costly and protracted lawsuits?

That is one option prescribed under these laws, and those who prevail in such cases can recover attorney’s fees.

But the laws also contain provisions intended to help people resolve disputes in a cheaper and less complicated way: Citizens can ask the state attorney general or county district attorney to sue a government authority, and any person can seek advice from the attorney general.

Yet, more than three decades after the Legislature enacted these provisions, questions about their effectiveness remain.

Gannett Wisconsin Media recently highlighted the cases of citizens who, after being brushed off by prosecutors, successfully sued public officials for violating open-government laws. Gannett’s stories also noted that Attorney General J.B. Van Hollen has not filed a single lawsuit to enforce compliance with these laws, while his predecessor, Peg Lautenschlager, had filed just a few such cases.

The stories shed much-needed light on how difficult it can be to fight improper government secrecy. They also touched on a broader problem: Hard data on disputes brought to the attorney general and district attorneys is almost nonexistent.

I’m writing this column to help fix that.

Recently, I completed a master’s thesis in media studies at the University of Wisconsin-Milwaukee on how the attorney general’s office has handled complaints about the public records law. I analyzed documents from more than 300 public records disputes during a six-year period. I also interviewed 17 people involved in those disputes.

Here is what I found:

  • The attorney general’s office denied every request for legal action, but such requests accounted for just a quarter of cases. Most of the time, requesters sought advice.
  • Nearly half of the cases directly concerned whether a requester had a right to a record. Other common issues included response times, fees and definitions in the law.
  • Cases overwhelmingly involved local authorities as opposed to state government.
  • The office was relatively timely, responding to nearly three-quarters of requests within 30 business days. Still, the range of response times varied widely — from within a week to nearly a year.
  • The office at times actively worked with parties to mediate disputes, though the degree of that engagement was inconsistent.

Ultimately, the findings confirm that the attorney general can play a meaningful role in helping citizens use the public records law and challenge improper government secrecy without litigation. At the same time, the study revealed complaints about and drawbacks to how the attorney general handles disputes.

For one thing, the study highlighted how difficult it is to track what kinds of complaints are being received and what is being done about them. In Gannett’s reports, a spokesperson for Van Hollen said the attorney general’s office does not track open-government complaints. That should change.

The office should regularly report caseload statistics about requests for assistance on the public records and open meetings laws, as do other states, including Pennsylvania and Indiana.

The office should also actively publish open-government correspondence containing noteworthy advice. It has not done so recently or on a routine basis.

Such action would enable citizens to monitor developments in the public records and open meetings laws, and to assess how the attorney general is handling disclosure disputes.

That is information everyone has a right to know.

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. Jonathan Anderson is a reporter for The Lakeland Times in Minocqua. His thesis is available online.

Last Updated on Monday, 07 April 2014 15:17
 

May: Lawmakers should retain, release records

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In early April, in a case brought by the conservative MacIver Institute against state Sen. Jon Erpenbach, D-Middleton, the Wisconsin Court of Appeals declared that communications from citizens to lawmakers are, as one judge put it, “subject to the open records law, without redaction.”

But the court also recognized that legislators have the power to tweak the rules for themselves — which is exactly what they’ve done on the critical issue of records retention.

Records retention rules determine how long custodians must keep records. State agencies and officials must retain documents for periods set by the state public records board. The default records retention period for local governments is seven years.

Yet the state’s law excludes “(r)ecords and correspondence of any member of the Legislature” from the list of records that must be retained. Legislators can keep records for seven years, one month, one day, or not at all.

Lawmakers must still provide any records they possess in response to a request. But they don’t need to provide documents they don’t have, and nothing compels them to keep documents.

It’s not hard to see that the law creates perverse incentives for legislators. It is much easier to delete a document than retain it. Deletion also avoids putting a legislator in the potentially uncomfortable position of having to provide a document to a constituent, reporter or political rival.

Yet legislators clearly possess some of the state’s most important documents. They make the laws that everyone must follow, and the public has a significant interest in how legislation is developed. This means knowing who is talking or writing to legislators and seeing what documents they receive.

The court of appeals recognized the importance of legislative documents in the MacIver Institute case. It said public awareness of who is doing what to influence public policy “is essential for effective oversight of our government.” The source of a communication is also important, whether it be public or private, labor or management, nonprofit or for-profit.

In the MacIver Institute case, the court ruled that Sen. Erpenbach must provide unredacted copies of emails he received during the debate over 2011 Act 10, which essentially ended collective bargaining rights for most government employees. Previously, the names and email addresses of senders were blacked out.

Sen. Erpenbach, to his credit, did not simply destroy the emails upon receipt. But under current law he could have.

Let’s hope the court of appeals ruling, by reaffirming legislators’ obligation to provide records, does not prompt a shred fest at the Capitol. In fact, legislators should establish retention policies that apply to all members of the Assembly and Senate, and give the public assurance that legislative records won’t be deleted.

To be clear, retaining records doesn’t always mean they must be disclosed. Custodians are still required to withhold sensitive personal information, like medical records. And custodians can deny a request or redact information if the public interest in nondisclosure outweighs the public interest in disclosure. It’s what’s known as the balancing test.

Records retention just preserves the public’s chance to see a record, even if that chance is later denied under confidentiality rules or the balancing test. Deletion doesn’t.

Legislators may be the ones holding the records related to their office, but at the end of the day, it’s still the public’s information. Legislators should respect the public’s right to know and retain their records.

It’s an issue all candidates for state Legislature should be asked about this election year.

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. Christa Westerberg, an attorney with McGillivray Westerberg & Bender, is the group's vice-president.

Last Updated on Wednesday, 30 April 2014 09:20
 

Investigative reporter Umhoefer to receive Wisconsin Watchdog Award

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Milwaukee Journal Sentinel investigative reporter Dave Umhoefer, winner of a Pulitzer Prize for his 2008 investigation into pension padding in Milwaukee County, has been named the 2014 recipient of the Distinguished Wisconsin Watchdog Award.

The award is a highlight of the fourth annual Wisconsin Watchdog Awards reception and dinner, presented jointly by the Wisconsin Center for Investigative Journalism, the Wisconsin Freedom of Information Council and the Madison Pro Chapter of the Society of Professional Journalists.

The April 23 event, a celebration of open government and investigative journalism, is open to the public, with proceeds supporting the nonprofit and nonpartisan Wisconsin Center for Investigative Journalism.

"For more than 25 years, Dave Umhoefer has held the powerful accountable for their actions and provided insights into key issues facing Wisconsin communities," said Andy Hall, executive director of the investigative center.

"When we created this award four years ago to recognize an individual’s contributions to open government or investigative journalism, all of us knew that Dave someday would receive it."

Past winners of the award are Dave Zweifel, editor emeritus of The Capital Times and a founder of the Wisconsin Freedom of Information Council; the late Dick Wheeler, founder of the Wheeler Report newsletter; and U.S. District Court Judge Lynn Adelman, chief author of the state's open records law.

Umhoefer, a La Crosse native and University of Wisconsin-Madison graduate, received the School of Journalism and Mass Communication’s Distinguished Service Award in 2009.

Umhoefer is a member of the Journal Sentinel’s Watchdog Team, where his work includes PolitiFact Wisconsin. He also is an instructor at Marquette University, where he teaches an investigative reporting class.

“His investigation into pension padding by Milwaukee County officials was so thorough and meticulous that county officials reported themselves to the IRS before the story even ran,” Greg Borowski, the Journal Sentinel’s assistant managing editor for projects and investigations, noted in nominating Umhoefer for the Distinguished Wisconsin Watchdog Award.

“That is emblematic of the work Dave has done. It often tackles complex and arcane subjects or involves reams of paper documents or millions of electronic ones. He is able to get past the spin, sort out the truth and then write with unquestioned authority.”

The Wisconsin Watchdog Awards event also will honor winners of the Freedom of Information Council’s annual Opee Awards for their work promoting open government. The Madison SPJ chapter will review the year in journalism.

The event at The Madison Club, 5 E. Wilson St., begins with a reception at 5 p.m., followed by dinner at 6.

Tickets are available for $55. Discounts are available for purchases of tables. Register online.

Lead sponsorship of the event is provided by the Wisconsin Newspaper Association Foundation. Additional support is provided by the Wisconsin Broadcasters Association and two law firms -- McGillivray Westerberg & Bender and Schott Bublitz & Engel.

Additional sponsors are being sought. Sponsorship information is available online.

Attendance is limited to 120 people.

 
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