Denials, delays and costs are common public-records hurdles

By Jacob Kushner and Rachel Haas

Patricia Simms has filed a lot of public records requests during her career as a reporter at the Wisconsin State Journal. Sometimes, the records are readily turned over. But then, she says, “Lots of times you try to get information and they stonewall you.”

A lawsuit is the last resort an individual who has been denied access to records by government officials. These days Simms’ newspaper is one of several news organizations suing Dane County officials over access to information about a 911 call made before UW-Madison student Brittany Zimmermann was murdered.

After the public became outraged at a perceived cover-up over the mishandling of the 911 call, Dane County officials flamed the fire by taking months to respond to public records requests, and denying access to others. They also demanded $2,400 upfront before they’d search for records related to complaints about 911 services in the past several years.

Denials, delays and outrageous costs were among tactics used by Dane County Executive Kathleen Falk’s administration – tactics often used to stop records from becoming public.

“The 911 center has been the biggest issue in terms of what they would release and what they wouldn’t release and how long it took to get them to release it,” says Simms.

Bill Lueders, president of the Wisconsin Freedom of Information Council, said discouraging responses from custodians are not unusual.

“If a custodian doesn’t want to comply with a records request, often they will claim that doing so is just a huge onerous task that will take them many, many hours and cost the requester many, many dollars,” Lueders said. “I think usually a response like that is calculated to discourage the requester.”

The public records law requires custodians to respond “as soon as practicable and without delay,” and the Attorney General’s office, in its compliance guide to records custodians, has construed this to mean 10 business days.

It took Dane County officials two and a half months to comply with a records request for basic information about 911 service complaints, according to an Isthmus story, and the Wisconsin State Journal continues to wait for some records requested last spring.

Simms said she has experienced many struggles in obtaining public records.
Fifteen years ago, Simms requested the salaries of doctors employed with the university. The university did not want to release the information because it did not want doctors knowing what each other were earning and arguing over who was making more money.

“In the end it was public information and we won,” Simms said. “Lots of times we don’t win.

The Public Records Law allows people to make an open records request, orally or in writing, based on the notion that the information is in the public’s right to know. However, many requestors run into trouble when an agency refuses to supply a record. A request can be denied for a variety of reasons. Common reasons for denial include potential invasions of privacy, damage to a law enforcement investigation, and protection of the public.

Ellen Gabler submits records requests regularly through her work as a reporter for the Milwaukee Journal Sentinel’s Watchdog Team. She says a wide discrepancy exists among agencies in their willingness to supply records and the procedures through which they address records requests.

“It really depends on the person and the agency. Some of them are very happy to give you the information and some of them know that they have to and they’re more than willing to hand it over,” Gabler said.

Gabler cited one investigation in which she sought records about the number of Milwaukee restaurant inspections the State Department of Health Services conducted over a year-long period. The department said their database was not capable of providing that information, so Gabler instead requested the total number of inspections conducted and divided that by the number of licensed restaurants to find the average number of yearly inspections per institution.

Gabler said most of the time she receives the requested record or similar information without issue. Other times she resorts to negotiating with the legal custodian, or keeper of the record.

“We try to convince them of the public’s right to know,” Gabler said. “Sometimes that works believe it or not. If that doesn’t work then we’ll say ‘well what can we get?’”

Wisconsin’s Public Records Law requires legal custodians to perform a balancing test to determine whether a record should be release. The law states that “the denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”

On occasion debates over records escalate into a legal battle between the requestor and the state agency, a risky business when attorney fees can overwhelm small media and individuals.

Filing a lawsuit is the last stop for appealing a public records request denial, and they are becoming less common as news organizations face significant financial problems.

“In general I think news organizations are a bit more reluctant to take on these kinds of cases when they are having to consider staff reductions for financial reasons,” says Bob Dreps, an attorney at Godfrey & Kahn who regularly represents the news media.

He says there are many reasons why media outlets are reluctant to file lawsuits in matters of denied or ignored records requests.

“Probably the most common reason for not doing it is uncertainty about whether they will prevail or not.”

As senior advisor in Governor Jim Doyle’s office of legal counsel, Chandra Miller Fienen trains employees on how to respond to records request and deals with disputed requests. She says the rare instances in which her office denies requests are because they are unclear, overly broad or contain sensitive personal information.

“Usually what we try to do is call the requestor up,” Fienen said. “If it’s poorly worded or overly broad we try to work that out with the requestor so we understand what they want. Quite often we’re able to come to an agreement about what the requestor really needs.”

Lueders said broadly worded requests often allow custodians to claim requests will take much time and work to fulfill, and lead custodians to charge fees in return.

“Both sides need to work together more cooperatively,” Lueders said. “If the custodian feels the request is overbroad and burdensome, the custodian should be going back to the requester and saying, ‘Can we talk about this? Can we work this out? Can we make this more reasonable?’”

Lueders said the Wisconsin Freedom of Information Council recently revised the standard request letter for open records to prevent requests considered overly broad from being ignored. The revised letter includes a line that indicates to contact the requester if further refining or explanation is necessary.

Peter Fox, executive director of the Wisconsin Newspaper Association, said the main reason records custodians do not react or are slow to react is because they do not understand the law.

“For the most part, I find that noncompliance with the open records law is more as a result of lack of knowledge and a lack of training on the part of records custodians than any other reason,” Fox said. “I have encountered very few purposefully deceitful people.”

Fox said he did encounter purposeful deceit, however, when he was editor of the Racine Journal Times. The Racine County Jail hired a private company to perform a study of the jail, which was experiencing many health and safety concerns. The study showed what the jail needed to improve to prevent from being sued. Fox said the Journal Times wanted to report on the wider scale of the study so the public would know how well-run the jail was, but the county sheriff refused to share the report, contending that it was still in “draft” status and did not need to be released to the public.

Fox said the company that performed the jail study had “purposefully conspired” with the county to call the document a draft so it would never be released. The county attorney admitted this purposeful deceit during trial. In the end, the Supreme Court decision in Fox vs. Bock clarified the law in the definition of what constitutes a draft.

Lueders said better communication needs to exist between the public and officials. He said citizens can sue if they are illegally denied access to public information, although the process is difficult and could cost thousands of dollars.

“What I would suggest citizens do is make an earnest effort to talk to the officials, to try to work something out,” Lueders said. “They should always assume that officials are reasonable and that there’s some way to reach accommodation, even if the officials don’t act as though that’s the case.”

But still hurdles abound. For example, the Marinette school district led the editor of the Marinette Eagle Herald in circles in her quest for open records.

Upon first attempting access to specific public records, the editor was asked by an employee at the office to return and speak with Sandy Walker, who was not in the office on Fridays. The editor arrived at the school district office Monday, as advised, only to find Sandy Walker was still unavailable.

A different office worker said the school board meeting agendas and minutes that the editor requested were “locked in a vault.”