Wisconsin Freedom of Information Council

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September: Coveted records exemption wrong for Wisconsin

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Over the July 4 weekend in 2015, members of the state Legislature sparked a public uproar by proposing last-minute changes to the state budget bill that would have created a “deliberative process” exception to Wisconsin’s long-cherished public records law. Government transparency advocates condemned the move, and the changes were hastily rescinded.

But the effort to shield records that are produced while crafting law and policy did not end there. The administration of Gov. Scott Walker continued to assert its ability to withhold these records under existing law.

In May 2015, the Center for Media and Democracy sued Walker for refusing a request for documents relating to prior failed legislation that sought to rewrite the University of Wisconsin’s mission statement, known as “the Wisconsin Idea.” Walker’s attorneys cited “deliberative process” and other reasons for denying access.

Shortly afterward, Madison attorney Katy Lounsbury filed suit along with her husband, Madison journalist Jud Lounsbury, and The Progressive magazine in response to a similar denial. The two cases were consolidated; I represented the Lounsburys in their action.

This May, Dane County Judge Amy Smith issued a decision rejecting the deliberative process defense as inconsistent with Wisconsin law. Friends of open government celebrated the ruling, which the state did not appeal, as a deterrent to other public officials who might try to claim that this loophole exists. But there still could be efforts to assert this privilege in the courts or through legislation.

The phrase “deliberate process” borrows from the terminology employed by federal courts when applying the federal Freedom of Information Act, the U.S. government’s public records legislation. Congress incorporated the “deliberative process” privilege in FOIA through what is known as Exemption 5 to that law.

Exemption 5 allows the federal officials to withhold certain “interagency” or “intra-agency” memoranda from the reach of FOIA requests. Courts have interpreted the exemption as permitting federal officials to deny public access to agency employees’ file memos, letters from employees of one agency to those of another, and consultants’ reports prepared for an agency.

These sorts of records are all routinely available under Wisconsin’s public records law.

In fact, as we noted in the lawsuits, the drafters of Wisconsin’s current public records law considered but rejected provisions similar to Exemption 5. That decision is consistent with the reputation that Wisconsin’s public records law enjoys as one of the nation’s broadest.

While the federal approach relies on a purported need for agencies to operate in secrecy in order to produce the best final work product, Wisconsin’s approach embodies an opposite philosophy—that outside scrutiny improves the process. As Judge Smith noted in her ruling, the effort to assert a deliberative process privilege “flies in the face of long-held policies underlying Wisconsin's open records law.”

Regardless of whether the next attempt to introduce it comes by judicial or legislative cover, a deliberative process privilege would allow agencies and state officials to keep us in the dark regarding the identities and motivations of those who draft the rules. From the thunder of the initial rally against deliberative process in July 2015 to the comparatively subdued but welcome reception for Judge Smith’s decision, that is the takeaway that we cannot forget.

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 Thursday, 01 September 2016 09:17
 

August: Supreme Court cases key to openness

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Wisconsin’s third branch of government is critical to open government. This year, the Wisconsin Supreme Court will hear three cases involving Wisconsin’s open records law, and could make important decisions involving access to the courts.

The court’s docket starts with a case about whether videos of law enforcement training sessions must be released to the public. The videos were requested from then-Waukesha District Attorney Brad Schimel by the Democratic Party of Wisconsin during the race for attorney general, which Schimel later won.

Lower courts rejected Department of Justice arguments that disclosing the videos would educate criminals about law enforcement practices and harm crime victims, because the information was already in the public sphere and did not identify victims.

The appeals court ruled that the DOJ “neither made the exceptional case required to shield public records from public view … nor overcame the presumption of complete public access to public records.” But the justices have agreed to take another look.

In another politically tinged case, the court will review whether Milwaukee County Sheriff David Clarke can black out information on federal forms used to request that arrested aliens be detained after state custody ends. An immigration rights group sued over these redactions, and lower courts agreed the records shoulds be fully available.

“[I]f it’s helping the public to identify that law enforcement … is violating federal or state law, that’s a pretty strong argument on behalf of [releasing the records],” said the circuit court.

Prior court rulings have recognized the importance of transparency in law enforcement. Let’s hope that view continues to prevail in Wisconsin.

Finally, the court will look at how much information must be revealed when the Department of Justice runs criminal background checks. A Milwaukee man whose name was used as an alias by a convicted criminal sued to block the release of records he said falsely suggested he was a criminal, impairing his employment and housing opportunities.

An appellate court ruled that the open records law did not allow such a claim. But one concurring judge suggested that the Department of Justice’s response was incomplete, because it did not also release an “innocence letter” clearing the plaintiff of the identified crimes. This is a simple fix that is more transparent for all concerned.

The high court also has a role in administering the court system, and in this capacity has encouraged the State Bar of Wisconsin to re-submit a 2009 petition to allow records of certain charges and convictions to be expunged, or blocked from release. The Wisconsin Freedom of Information Council believes these records should remain public.

In recent months, the court has itself stirred concerns by allowing parties in the lingering John Doe case to file entire motions, briefs and other documents under seal; but it rejected an effort by a state district attorney to block the release of records of a disciplinary probe.

The court, which begins its term next month, includes two new justices, representing a fresh chance to reaffirm 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 group dedicated to open government. Christa Westerberg is the group’s co-vice president.

Last Updated on Monday, 01 August 2016 08:27
 

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
 

July: Some lawmakers still crave secrecy

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Last year on July 2, the state Legislature launched a sneak attack on Wisconsin’s open records law, effectively seeking to exempt legislators from its reach. That effort died following a huge public backlash. But some lawmakers, it’s clear, remain actively hostile to the state’s tradition of open government.

One ongoing effort to duck accountability concerns records of communications to legislators. In 2014, a state appeals court ruled that state Sen. Jon Erpenbach, D-Madison, must release not just the messages but the names and addresses of people who had contacted him on a given issue, which he had tried to shield.

“Public awareness of ‘who’ is attempting to influence public policy is essential for effective oversight of our government,” wrote Judge Mark Gundrum, a former Republican state lawmaker, for the court. Citizens have a right to know who contacts elected officials “in favor of or opposed to proposed legislation.”

As a reporter, I have obtained correspondence to lawmakers showing overwhelming public support for failed proposals to toughen drunken driving laws and embrace nonpartisan redistricting. Sheila Plotkin, a resident of McFarland, has documented that lawmakers disregarded the vast majority of input they received on altering campaign finance rules and dismantling the state Government Accountability Board, among other issues. See her website: we-the-irrelevant.org.

Recently, Plotkin has been looking into citizen correspondence to legislators regarding proposed water legislation. The office of Rep. Scott Krug, R-Nekoosa, provided her with multiple records of its own creation that listed the names and addresses of people who wrote in on this issue, with the nebulous notation, “Wants high capacity wells/CAFO’s/ground water reform.”

As she recounts in a web post, Plotkin called the office and spoke to Krug aide Dan Posca, who said this vague designation could mean either that the person was for the identified bill, or against it. It was impossible to tell.

I repeatedly tried to talk to Posca about Plotkin’s post, without success. Krug told me the vague wording was used because “there were hundreds of variations of things people wanted done.” He claimed all of the emails he received were provided to Plotkin, besides the summary records created by his staff.

Not so, says Plotkin, who found multiple instances where the office’s vague record lacked a corresponding email. For instance, she couldn’t find her own email to GOP lawmakers, sent Feb. 3, urging them at length and in detail to “Vote NO on these bills.” The office provided only its internal record, dated Feb. 5, logging a contact from a Sheila Plotkin who “wants … reform.”

What had been perfectly clear was rendered purposefully oblique, to make it harder for the public to see that its input was ignored. For shame.

In fact, Krug and other lawmakers can freely destroy the correspondence they receive, replacing it with their own records or nothing at all, because legislators are exempt from retention rules in place for everyone else in state and local government. According to The Associated Press, Senate Majority Leader Scott Fitzgerald, R-Juneau, deletes his calendar on a daily basis, evidently to keep the people who pay his salary from learning how he spends his time.

That needs to change. Citizens and media should demand an end to this loophole, raising this issue with legislative candidates. State lawmakers do not deserve the ability to destroy public records to protect themselves.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Bill Lueders is the group’s president.

Last Updated on Wednesday, 29 June 2016 11:36
 

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.

 
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