Wisconsin Freedom of Information Council

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June: Ruling restores access to accident report data

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A Wisconsin court of appeals has finally put to rest some of the questions over what information must be withheld under the federal Driver’s Privacy Protection Act, or DPPA. Its recent decision ends years of confusion in a way that squares with the state’s traditions of openness — and with common sense.

The DPPA was enacted more than two decades ago to restrict the release of personal information from DMV records. It was never meant to prevent police from releasing basic information in accident reports and other law-enforcement records.

But that was how the law was interpreted in much of Wisconsin. In recent years, following a federal court ruling in an Illinois case, concerns over liability have led some law enforcement agencies to heavily redact (black out) reports before releasing them — limiting their news value and hampering public oversight of police.

In its May 10 decision, Wisconsin’s 3rd District Court of Appeals held that accident reports need not be redacted to comply with the DPPA, because state law expressly mandates their disclosure. Personal information obtained from other sources and merely verified with DMV records may also be released.

I was one of the attorneys, along with Bob Dreps, who represented a newspaper that filed the lawsuit that led to this ruling. The case was brought by the New Richmond News against the city of New Richmond.

Congress passed the DPPA in 1994 after a television actress was murdered by a stalker who obtained her home address from a local DMV. The law’s intent is clear: DMVs, with their vast repositories of personal information, cannot disclose that data except for one of 14 “permissible uses.” The same restrictions apply to other agencies that use DMV data.

But then, in 2012, the village of Palatine, Illinois, was threatened with liability for printing vehicle owners’ personal information — obtained from DMV records — on parking tickets placed on car windshields. The Palatine case caused some police departments in Wisconsin to start redacting records, prompting the New Richmond News to file suit.

In the end, reason won out in Palatine. The courts ultimately ruled that disclosing personal information on parking tickets was allowed because the police department used the information in carrying out its functions — one of the 14 “permissible uses.”

Reason should also win out in Wisconsin, although this may not happen right away. Whereas the court of appeals ruled accident reports must always be accessible, it also concluded that personal information obtained from DMV records and incorporated into incident reports can only be disclosed if doing so serves a function of the police department — a question the case was remanded to the circuit court to resolve.

The public has a legitimate right to law enforcement records, which are of little value if scrubbed of names and addresses. How can the public know if laws are enforced equally and appropriately if the identities of the people involved are obscured?

Ideally, the common-sense approach adopted by the court of appeals will serve as a blueprint for addressing the questions that remain — without further litigation.

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. Dustin Brown is an attorney at Godfrey & Kahn, S.C.

Last Updated on Wednesday, 01 June 2016 10:51
 

Online court records facing new threats

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Dear Council members and supporters,

This is to make you aware of developments regarding access to online court records, especially an open rules conference this morning (May 12) before the Wisconsin Supreme Court.

The court voted 5-2 to dismiss a rules petition from the State Bar of Wisconsin from 2009. But it did so with the understanding that the petition would be refiled, giving it a fresh opportunity to take this issue up again. Chief Justice Roggensack and Justices Prosser, Ziegler, Gableman and Rebecca Bradley voted in favor of dismissal, to pave the way for a fresh petition. Justices Abrahamson and Ann Walsh Bradley voted against.

That 2009 petition called on the court to significantly increase the availability of expungement of criminal cases, including the removal of information from WCCA, the state court's online records system.

Earlier this year, the court deadlocked 3-3 on a similar motion, with Justice Prosser voting against dismissal and Justice R. Bradley not participating . But Justice Prosser brought a motion for reconsideration and this time voted to dismiss, joined by R. Bradley, who said she had since been able to review petition-related materials.

The Council has long supported public access to online court records and fought against efforts to remove information. I need not recount the various arguments in favor of openness, which have also been sounded by business groups and the state Department of Justice, as in this filing. What is troubling about today's proceeding is the extent to which the justices, despite their differences, which at times were scarcely coherent, seemed to agree on the need for changes to remove certain information from the system.

Several justices spoke about the parade of citizens who came before the court in 2010 to attest to the various ways that WCCA, which everyone calls CCAP, has ruined their lives. None of these claims were subjected to even the most rudimentary investigation to determine their credibility, and, as I have reported in the past (as in here and here), at least some of these claims have been shown to be untrue.

The justices demonstrated a wholesale willingness to believe these unproven claims, as when Prosser said that repercussions to people on WCCA occur "often in situations where they were not involved and are found not guilty." That the records system would provide clear and irrefutable confirmation of a not guilty verdict apparently was not deemed relevant.

Rebecca Bradley noted that the actions called for in the petition seemed "quite legislative in nature," which would be a big no-no for a court dominated by people who vow to never legislate from the bench. But she voted to dismiss to entertain a new petition.

Even the two justices who voted no seemed open to restricting access. Ann Walsh Bradley said she opposed the motion to dismiss because "it is our responsibility to solve this problem."

In addition to the court's interest in revisiting this issue, possible restrictions to records access are being presented on three other fronts:

 

  • The director of state courts is now pulling together a new WCCA oversight committee, to work out issues related to moving to all-electronic records-keeping in the state circuit court system. This committee was mentioned during today's hearing as another way in which perceived problems stemming from access to court records might be addressed. I have been asked to serve on this committee but do not know to what extent advocates for open records will be otherwise represented.
  • A Legislative Council committee chaired by Sen. Alberta Darling will look at ways to reduce recidivism and remove impediments to ex-offender employment, which will likely include calls to shield online court records. The membership of this committee has not been announced.
  • Finally, a bill to expand expunction introduced late in the current legislature session will almost certainly be reintroduced in 2017-18. The bill, AB 1005 in its current incarnation, would allow any person on the receiving end of a criminal charge that was dismissed or which led to a finding of not guilty, or was overturned on appeal, to petition a judge for expunction, including records removal. This would pertain to past cases without limits on when the charge was filed or the age of the person. O.J. Simpson would be eligible if he had been tried in this state.

 

So that's what's happening with regard to online court records. Current levels of access are very much at risk. Continued vigilance by advocates for open government is essential.

 

April: Walker’s records directive is good news

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Sunshine Week, the annual celebration of open government and the people’s right to know, got an unexpected and welcome beam of hope in mid-March when Gov. Scott Walker issued an executive order directing state agencies to speed up responses to public records requests and to track them to show their performance.

“We go above and beyond what is required by the law when it comes to public record requests to make sure we are being as open and transparent as possible for our citizens,” Walker said in a statement.

The news was like a gust of fresh spring air blowing across state government. We commend the governor’s actions and hope he is a true convert, after a bit of waywardness, to the cause of transparency in government.

As Wisconsin’s open records and open meetings laws have long recognized, transparency is essential to the honest operation of government and the conduct of the public’s business.

Too often in recent months, it has seemed that the state’s Open Records law was under siege from state Republicans. An attempt to gut the law by legislative leaders last July prompted a fierce backlash and the effort was quickly abandoned.

Later in the summer, the state Public Records Board expanded the definition of records considered to have temporary significance which allowed them to be immediately destroyed. That, too, was met with public outrage and the board reversed itself in January.

Walker’s initiative promises a new path for more accountable and responsive government. It includes specific directives to promote public access.

The governor went beyond what is prescribed in state statutes by setting specific timelines for agencies to respond to requests for information, which, we hope, will end the weeks or even months of delay that has sometimes greeted information requests from citizens and media.

Henceforth, state agencies will be expected to acknowledge receipt of requests within one day, and to fulfill simple records requests within 10 days whenever practicable.

The governor also directed state agencies to provide electronic copies of records when they are available without charging copying fees, and called on them to set aside enough staff resources to create a tracking system on public records requests. That will create a measuring stick to see how agencies are performing.

Finally, the governor’s order reminded state agencies of existing rules forbidding them from charging for the costs they incur reviewing records for possible redaction, and requiring them to bill requesters only for the cost of locating records at the compensation rate of the lowest paid employee capable of performing the task—and then only if the cost is more than $50.

Those are all welcome steps that we hope will go a long way toward allowing state citizens to get the information they need to understand what their government is doing.

Advocates of open government have only one lament: the governor’s directive applies just to state agencies. Local governments — cities, counties, villages, towns, school boards and other government entities, including the state Legislature — would do well to follow the governor’s lead and institute similar steps.

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. Council member Steve Lovejoy is editor emeritus of The Journal Times, Racine.

Last Updated on Tuesday, 29 March 2016 11:19
 

May: State should support student expression

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Two years ago, the Fond du Lac School District unveiled new guidelines requiring administrative review and approval before the publication of any student media. The reaction by students was swift, democratic and effective.

Within days, they had publicized the change online, presented their case at a school board meeting, appeared on local media, and gathered several thousand signatures on a petition calling for student publications to be returned to the students. Over the next several months, they highlighted the district’s use of these guidelines to block the publication of particular photos and information.

These efforts succeeded. The district agreed to convene a group of student journalists and educators to craft a new policy. By the next school year, the restrictive guidelines were gone.

The passion for the free flow of information and Constitutional rights displayed by these students stands as a prime example of the power of a journalism education based on student responsibility and ownership. But efforts to stifle student speech remain.

Recently, a principal in Chicago censored a story about the school’s new starting time, at one point threatening to kill the publication entirely. Student journalists in Missouri were told they must submit a story about their superintendent’s resignation to the principal for editing. A student journalist in West Bend, Wisconsin, reports being barred from writing about certain topics.

And in many schools, the looming possibility of administrative overreach leads students to censor themselves, back down when challenged, or abandon student publications entirely.

This should not be happening. While schools must maintain an effective learning atmosphere, they do not have the right to suppress information they simply do not like. Court cases have made clear that students maintain their First Amendment rights of free speech at school.

Unfortunately, a 1988 U.S. Supreme Court ruling (Hazelwood School District v. Kuhlmeier) established that schools could review and possibly restrain speech if related to legitimate educational purposes. Many school districts have over-applied this highly subjective standard.

Once a principal is allowed to pre-approve student journalism, it is inevitable that he or she will find things to change to make the expression more “positive” or more aligned with what the principal wants to say. This does not teach journalism or citizenship. It teaches that authority figures—government officials, in the case of public schools—decide what ideas can be discussed.

Since Hazelwood, eight states have passed laws clearly establishing that student publications belong to students, who are themselves responsible for deciding what to publish. North Dakota passed one such law unanimously last year, and more than 20 other states are looking to join them.

These bills, termed New Voices laws, do nothing to limit a school’s ability to prohibit illegal or harmful speech. But they do let students perfect the power of their own voices and explore the benefits of the free flow of information in a democracy.

Students in Wisconsin deserve a New Voices law of their own. The effort to do so here, known as Supporting New Voices of Wisconsin, has been getting media attention and editorial support.

In the next legislative session, we hope state lawmakers will help ensure that the rights of student journalists are clear and that schools are using student publications for student learning, rather than to promote the agenda of government officials.

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. Matthew Smith, a teacher at Fond du Lac High School, is a coordinator for New Voices of Wisconsin.

Last Updated on Monday, 02 May 2016 09:12
 

Wisconsin Freedom of Information Council names “Opee” winners

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FOR IMMEDIATE RELEASE

Contact: Bill Lueders (608) 669-4712

March 8, 2016

Wisconsin Freedom of Information Council names “Opee” winners

Wisconsin’s Republican attorney general and a key GOP lawmaker are among the recipients, good and bad, of the 2015-16 Openness Awards, or Opees, bestowed annually by the Wisconsin Freedom of Information Council.

The awards, announced in advance of national Sunshine Week (sunshineweek.org), March 13-19, recognize extraordinary achievement in the cause of open government. It is the tenth consecutive year that the awards have been given.

“In 2015, we saw shocking attacks on the state’s traditions of open government,” said Bill Lueders, council president. “And while we are pleased to be able to recognize a few heroes, it is profoundly dismaying that we had so many zeroes to consider in rating assaults on transparency.”

Besides a cowardly attempt by lawmakers to gut the state’s open records law in early July, lawmakers acted to reduce transparency in campaign finance reports and Gov. Scott Walker’s administration embraced extra-legal interpretations of statutory language to justify shutting down records access.

“If not for the loud and clear opposition of Wisconsin residents from across the political spectrum, we would have lost much more ground than we did,” said Lueders, noting the changes forced by public reaction to the July proposals and to a new, immediately abused change in the definition of “transitory records.”

The Wisconsin Freedom of Information Council is a nonpartisan group that seeks to promote open government. It consists of about two dozen members representing media and other public interests. Sponsoring organizations include the Wisconsin Newspaper Association, Wisconsin Broadcasters Association, Wisconsin Associated Press, Wisconsin News Photographers and the Madison Chapter of the Society of Professional Journalists.

The winners will be invited to receive their awards at the sixth annual Wisconsin Watchdog Awards Dinner in Madison on Wednesday, April 20. The event is presented jointly by the Wisconsin Center for Investigative Journalism,Wisconsin Freedom of Information Council and the Madison Pro Chapter of the Society of Professional Journalists.

Awards are being given this year to institutions and individuals in six categories. The winners are:

Political Openness Award (“Popee”): Brad Schimel. Wisconsin’s Republican attorney general offered strong public opposition to the Legislature’s attack on the open records law, and helped affirm the value of open government at a summit he organized. Schimel’s new Office of Open Government has also led by example in setting out to improve its response time to records requests. The Council doesn’t agree with the AG on everything, but is pleased with how seriously he takes his statutory role to interpret and enforce the state’s openness laws.

Media Openness Award (“Mopee”): George Stanley and the Milwaukee Journal Sentinel.

When state lawmakers launched their sneak attack on the state’s open records law, the Milwaukee Journal Sentinel and its editor clicked into high gear, including a front-page editorial that helped force legislative leaders to back down, followed by aggressive reporting to uncover who was responsible for this proposal. Stanley and his staff, including editorial page editor David Haynes and associate editor Ernst-Ulrich Franzen, remained strong advocates for open government throughout the year, beating back other threats.

Citizen Openness Award (“Copee”): Sheila Plotkin. This McFarland resident undertook a huge open records project. She has battled with lawmakers who voted to dismantle the Government Accountability Board and hike political spending while decreasing transparency in a new campaign finance law to release the input they received from citizens on these issues. The results—showing that lawmakers disregarded the overwhelming weight of this input—are posted online, at we-the-irrelevant.org.

Open Records Scoop of the Year: (“Scoopee”): Greg Neumann, WKOW-TV. This was a banner year for stories based on records, including the Wisconsin State Journal’s reporting on bad state economic development loans, the Milwaukee Journal Sentinel’s uncovering of abuse allegations at a juvenile prison, and the Center for Media and Democracy’s discovery of changes to the “Wisconsin Idea.” But top honors go to this Madison television station for exposing how Walker administration officials and otherusedpersonalemail accounts to conduct official business, contrary to public assurances.

Whistleblower of the Year (“Whoopee”): Molly Regan . This former state employee quit her job when her concerns about questionable practices at the Wisconsin Economic Development Corp. were not, she believed, taken seriously. And she did not stay quiet about it, talking to The Progressive magazine and providing critical information that formed the basis for the Wisconsin State Journal’s story on how top state officials had pushed for a failed $500,000 loan to a struggling Milwaukee construction company, spurring new safeguards on how agency dollars are spent.

No Friend of Openness (“Nopee”): Robin Vos. Plenty of people deserve blame over the mid-summer attack on open records. Gov. Walker’s staff helped with the drafting and all 12 Republican members of the Joint Finance Committee voted for the changes after strenuous objections were raised by committee Democrats. But Assembly Speaker Vos was the main architect and subsequently sought a bill to exempt the Legislature from the records law. Vos also authored a bill amendment to end the longstanding requirement that significant donors to political campaigns reveal where they work, bringing darkness where once there was light. He was the worst of the worst in an abnormally bad year.

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