Wisconsin Freedom of Information Council

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Action Alert on Bill to Suppress Court Records in Wrongful Convictions

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The Wisconsin Freedom of Information Council is issuing an Action Alert on AB-460, a bill whose main purpose is to raise the compensation level for state victims of wrongful imprisonment. The bill unanimously passed the state Assembly on Tuesday.

Our concern is with how the bill would affect public access to case recordsmuch more significantly than has beeen publicly acknowledged. The bill as passed would not just require the removal of information on wrongful convictions from the state's online records system, or WCCA, as The Associated Press reported in October. It would actually completely shut off access to court records related to wrongful convictions.

According to the Legislative Reference Bureau analysis, "Under the bill, if a person's conviction for a crime is reversed, set aside, or vacated on grounds consistent with the person's innocence, and the person is ordered released from prison by a trial court, the court is required to grant the person, upon request [remedies including] sealing of all records related to his or her conviction."

The actual bill language calls for: "Sealing of all records related to the case. Records sealed under this section shall be accessible to the person but may not be available for public inspection or through the consolidated court automation program case management system."

This is a sweeping and radical requirement, one that will dramatically compromise the ability of media and the public to examine what went wrong in cases in which things are known to have gone terribly wrong.

The Wisconsin Freedom of Information Council opposes any reduction in public access to court records of wrongful convictions. As the Wisconsin State Journal noted in a Dec. 18 editorial , which assumed that the impact would be only to online court records:

"Rather than hiding its terrible mistakes from the public, the state should add information to electronic public records so it’s perfectly clear the individuals were victims, not criminals. It’s important for citizens to know their state justice system sometimes gets verdicts wrong."

Such concerns are greatly magnified when applied to all court records regarding wrongful convictions. The Council calls on advocates for open government to oppose this effort to protect the perpetrators of wrongful convictions from accountability. We urge that the Senate remove or amend this language, if and when it takes the bill up.

Last Updated on Thursday, 11 February 2016 12:33
 

February: Concerns linger over ‘transitory’ records

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The last six months have been a roller coaster for Wisconsin’s open records law. After the Legislature’s failed attack on the law over the Independence Day holiday, August brought a new threat.

A little-known state board expanded the definition of “transitory records,” which can be immediately destroyed. Once this action was revealed, there was an impressive outcry from the public and that change was dialed back last month. But there is still cause for concern.

The state Public Records Board sets retention schedules for state and local government records. Retention is important — if records aren’t retained, they can’t be requested and obtained by the public. State law makes retention the rule, and records can be disposed of only if the Public Records Board grants permission. The board’s mandate is to “safeguard the legal, financial and historical interests of the state in public records.”

But in 2010, the board made the questionable decision to allow immediate deletion of some correspondence. Such “transitory records” were deemed of such temporary value as to not require any retention. State agency employees could simply delete these records after they were created, without any further oversight.

On August 24, 2015, the board held a meeting and expanded the transitory records category. Now it included not just correspondence, but other documents such as “interim files” and “recordings used for training purposes.”

The board’s meeting notice and minutes contained no indication of this change, later prompting the Wisconsin Freedom of Information Council to file an Open Meetings complaint with the district attorney. The day after the new definition was passed, the Walker administration notified the Wisconsin State Journal that records it previously requested had already been destroyed as “transitory.”

News outlets then reported the Public Record Board’s actions, and the reaction was swift. Critics said the change undermined the records law and the public’s right to know, inviting abuse. They pointed out that records the board defined as “transitory” were actually of significant public interest. There were also concerns that whole categories of electronic communications would be deleted as “transitory.” The Public Records Board was flooded with nearly 1,900 emails.

Fortunately, the board listened. At a meeting in January, it rescinded its August decision to expand the definition of “transitory records.”

But the danger has not passed. The old, 2010 definition of “transitory records” is still in place. Records custodians can still immediately delete some correspondence. Comments from board members in January suggested they are resistant to eliminating this category, despite state law suggesting that no records can be instantly deleted. Board president Matt Blessing said the issue would be revisited at a future meeting. The board next convenes on March 7.

Another positive step is a bill being circulated by Democratic lawmakers that would create penalties for destroying public records. As Assembly Minority Leader Peter Barca observed, “There’s no recourse if agencies destroy records.” The bill would shore up existing provisions in the law that deter premature destruction of public records.

Let’s hope one or both of these potential fixes advance. Otherwise, Wisconsin’s weak records retention requirements will continue to undermine 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 nonprofit group dedicated to open government. Christa Westerberg is an attorney at Bender Westerberg LLC in Madison, and co-vice president of the Wisconsin Freedom of Information Council .

Last Updated on Monday, 01 February 2016 12:38
 

Development in Public Records Board case

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Dear Council members and supporters:

Matthew Blessing, the chair of the state Public Records Board, has just released to me the attached statement, in response to the verified complaint filed by the Council early this week. The statement says the Board intends to revisit the agenda items from its Aug. 24 meeting that were the subject of our complaint.

... I thank the Board for its response and welcome the opportunity this creates to rethink changing this language, especially in light of the way that it has been broadly interpreted by others in state government as granting authority to destroy certain records.

Bill Lueders
President
Wisconsin Freedom of Information Council

-----

December 17, 2015

STATEMENT CONCERNING PUBLIC RECORDS BOARD’S CONSIDERATION

OF TRANSITORY RECORDS

When the Public Records Board issued the agenda for the August 24 meeting, we anticipated addressing a number of items which we believed to be relatively routine and uncontroversial. It has become clear in the past few weeks that there is considerable interest in some of the items that were included in the nine page index attached to the meeting agenda. However, public concern over the management of transitory records has led the board to reevaluate the matter.

Part of our goal as the Public Records Board is to strike a balance between ensuring open and accessible government records and setting reasonable requirements on governmental bodies and officials relative to the retention of records. Our default position is, of course, toward transparency. Given the concerns that have been expressed regarding our decisions at the August 24 meeting, we believe it is in everyone’s interest to revisit that discussion about transitory records with clear notice to the public of the intent to address that issue.

Thus, the board will revisit actions taken relative to item number 4(a)(ii), index # 103 on the agenda for the August 24 meeting, and will place those items on a detailed agenda for an upcoming meeting. We hope that this will alleviate any need for the public to suffer the cost of any litigation relating to the verified complaint that was filed with the Dane County District Attorney.

Respectfully,

Matthew Blessing
Chair, Public Records Board
Phone: (608) 264-6480
Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

CC: Georgia L. Thompson, Executive Secretary of the Public Records Board


 

January: A tough year for transparency

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In 2015, Wisconsin advocates for open government faced a disquieting truth: If we want to preserve our state’s tradition of transparency and accountability, we must fight for it, against powerful players who will be fighting back.

The most egregious attack came on the cusp of the July 4 holiday weekend, when the Legislature’s Joint Finance Committee inserted provisions into the state budget to gut the state’s open records law. A tremendous backlash from across the political spectrum forced lawmakers to back down.

Just three weeks later, the attack’s main architect , Assembly Speaker Robin Vos, R-Rochester, ordered the drafting of a bill to exempt the Legislature from the records law, allowing all the secrecy it desires. That intent is apparently still alive.

And while some secrecy provisions were pulled from the budget, one sailed through, creating different rules for the University of Wisconsin System than for all other state agencies regarding the naming of finalists. Henceforth, the UW can pick athletic coaches and fill key academic positions without revealing which applicants were passed up.

Another blow came this fall, when Vos added a bill amendment late in the process to end the longstanding requirement that significant donors to political campaigns reveal where they work. The Legislature and Gov. Scott Walker, brushing off concerns that this will make it harder to track concerted special interest spending and even illegal activity, passed the bill into law.

Moreover, the Walker administration is embracing dubious interpretations of legal language to shield and even destroy records of public interest. It claims a “deliberative process” exemption that appears nowhere in state law lets it deny access to records of bill-drafting communications. A lawsuit over this practice is now playing out.

More recently, the administration has begun asserting that a new definition of “transitory records” approved by the state Public Records Board in August lets it destroy certain documents. This has happened at least twice, over records showing who has visited the governor’s executive residence and text messages between state officials and a private company that seems to have absconded with a state handout.

The Wisconsin Freedom of Information Council has asked the Dane County district attorney to prosecute the Public Records Board for violating the Open Meetings Law in changing its definition of transitory record without flagging this on its meeting agenda. The board chair has since vowed to revisit the matter.

But Walker administration officials have refused to explain their use of this definition, which does not mention text messages or visitors logs. Elisabeth Winterhack, an attorney for the Department of Administration, and DOA spokesman Cullen Werwie have not responded to repeated requests for answers to simple questions, including whether the Walker administration is continuing to destroy records showing who visits the executive residence.

Meanwhile, the Wisconsin Center for Investigative Journalism has reported that two former high-ranking Walker administration officials say they were warned not to use official email accounts for important business, to avoid creating a paper trail. The administration denies it.

We are seeing, in words and action, the beginning of a culture of contempt for the public’s right to know, embedded deeply within state government. That should be of grave concern to every resident of the Wisconsin, as we prepare for future battles.

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 group’s president.

Last Updated on Tuesday, 29 December 2015 13:40
 

December: Open the door to open data

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Scott Resnick, a former Madison alderperson, is proud of the work he’s done to advance the cause of open data. In 2012, the city enacted what he says was only the second open data ordinance in the country.

Open data is the practice of releasing huge quantities of public information in electronic form so it can be put to other public purposes. Governments, citizens, companies or others may then discover ways to use the data to create technological applications or to identify public issues that should be addressed.

While the concept sounds tech-heavy, the potential applications of open data span any number of real-world applications. For example, in Madison, Resnick says, a “bus radar” application designed by a university student allows would-be riders to track the location of a bus in real time, making it easier to avoid missing the bus.

The city of Madison’s open data initiative also led to development of an “adopt a fire hydrant” app that encourages citizens to locate and shovel out fire hydrants nearest them, Resnick says.

Nationally, the open data movement has increased access to geographic and weather data. Another “hot topic” in open data, Resnick says, is tracking police-related shootings and ensuring that data is standardized so that meaningful comparisons can be made.

Open data is popular among a new generation of virtual volunteers, including what Resnick refers to as “civic hacking groups.” Businesses are also prolific users. Resnick, who serves as chief operating officer of a private company, sees both as “a worthy use of government resources.”

Some companies use the data to improve public health, Resnick adds, noting that a private California-based company has developed an application that works with local fire departments to locate the nearest hospital for individuals in need of CPR. While the company is for-profit, Resnick notes, “their goal is to save lives.”

And while some companies may offer services derived from open data for a charge, Resnick says that when those companies compete with others who offer the services for free, “almost always, the free one has won out.”

Critics complain that open data only showcases data that government agencies choose to share, not more controversial records and information. But Resnick calls open data a “first step” that reinforces positive attitudes within government toward publicly releasing data. (He stresses that government should be careful to consider individuals’ privacy when releasing data.)

Other Wisconsin communities, including Milwaukee, are taking steps toward open data initiatives, and there is in interest on the state level, Resnick says. Many other states have legislation promoting open data.

With so much broad-based support for open data, those who seek to promote transparency in government need to be part of the conversation as it moves forward.

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 Tuesday, 01 December 2015 09:53
 
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