Wisconsin Freedom of Information Council

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September: Disciplined workers should be named

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When state employees misbehave, does the public have a right to know who they are? Two state agencies are answering that question in different ways.

Both the state Department of Justice and Department of Natural Resources have in the recent past blacked out the names of state workers from records of disciplinary actions released to the media. The agencies claimed the public interest was “sufficiently served” by releasing these redacted records.

The jousting began in 2013 when The Associated Press requested disciplinary records for DOJ employees. The agency released the records but not the names. Earlier this year, the AP made a similar request to the DNR and got a similar result.

But the DNR has had a change of heart. In late August, after an open records request by the Lakeland Times of Minocqua, the agency released the names of management and law enforcement employees disciplined in 2013, and those engaged in “more serious misconduct.” It has since signaled plans to release the rest.

The Justice Department, though, stands by its decision to withhold the names of employees found to be breaking the rules.

“When a disciplined employee’s name is not released, the public is still informed about what the discipline was and why it was imposed,” said DOJ spokeswoman Dana Brueck. The released information, she continued, “allows the public to see that its government is holding line staff employees accountable for their actions and taking steps to correct those situations, without stigmatizing the employees for minor violations.”

In its February 2013 letter to the AP, the Justice Department said none of the disciplined workers was “highly placed,” all were cited for work rule violations, and that publicizing their names “would embarrass them” and be “counterproductive” in persuading employees to correct their behavior.

The letter also claimed that supervisors would be less likely to mete out discipline if the names of employees were routinely released.

I’m not convinced.

First of all, rank shouldn’t matter. Whether the workers are line workers or top management, the same rules should apply. And even minor work rule violations can have a serious impact on morale, especially if there is a pattern of abuse. Without the names, it is harder for the public to know about patterns of conduct — or if the state responded promptly and fairly.

I’m no advocate of public shaming, but knowing there is a possibility your name will become public might be a deterrent to bad behavior. And as for supervisors who are reluctant to discipline employees for fear of disclosure, I’d argue that management is no place for the faint-hearted.

Finally, working in the public eye has always meant giving up a small amount of privacy.

Current state law requires a “balancing test” to determine whether information can be shared with the public. The test begins with a strong presumption of openness that must be weighed against arguments favoring secrecy.

In a 2006 decision, Kroeplin vs. DNR, a state appeals court ruled against a conservation warden who tried to keep his disciplinary record secret. The court concluded “the public’s strong interest in accessing these records is not outweighed in any way by the reasons offered by the DNR for preventing disclosure.”

The DOJ, which cited the Kroeplin case in its letter to the AP, seems to have relied on a narrow reading of the case while ignoring its overriding theme: openness trumps secrecy.

This could all be simpler. State law could require that every public worker who is disciplined be named. That might deter misbehavior. It certainly would guarantee a better informed public.

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. David Haynes, a council member, is the editorial page editor of the Milwaukee Journal Sentinel.

Last Updated on Tuesday, 02 September 2014 14:21

August: AG rivals all back more openness

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In Wisconsin, the office of attorney general has the authority to interpret and prosecute the state’s open records and open meetings laws. It is arguably the most important office in the state for promoting and defending our tradition of open government.

With that in mind, the Wisconsin Freedom of Information Council asked the three Democrats and one Republican vying for this position to say where they stand on questions related to these issues.

The Democratic candidates vying in the Aug. 12 primary are Dane County District Attorney Ismael Ozanne, Jefferson County District Attorney Susan Happ and state Rep. Jon Richards of Milwaukee. The winner will face Republican Waukesha County District Attorney Brad Schimel on Nov. 4.

All four candidates agree that the state should not limit access to online court records on the Wisconsin Circuit Court Access website, commonly known as CCAP. Complaints that landlords and employers use the site to unfairly deny housing and jobs have spurred legislative proposals to limit what information is available, or who may obtain it.

But all four candidates said the website is an important source of public information about the court system and should continue pretty much as is.

“I will voice my objections if the Legislature attempted to make it more difficult for citizens to gain access to public records, including court records available through CCAP,” Schimel said.

The four candidates also believe lawmakers should be required to follow state records retention rules, like all other state and local officials. Currently lawmakers are free to discard or delete office records unless there’s a pending open-records request for them.

Said Happ, “Legislators should not be exempt from the same rules the rest of state government has to follow.”

The four also agreed lawmakers should be subject to the state’s open meetings law. All but Richards said they believed the Legislature already had to abide by it.

While that’s generally true, there’s an exemption for caucuses at which the party in power can make decisions behind closed doors before pro-forma votes in public. And in 2011, the state Supreme Court, in a case brought by Ozanne about passage of the controversial Act 10, ruled the Legislature can make — or break — its own rules on how much public notice it gives of upcoming meetings.

Richards, who wrote an unsuccessful proposal to reverse the impact of that decision, said, “Wisconsin citizens deserve to know what is happening in their government and when it is happening, and we need to fully restore the state open meetings law in Wisconsin.”

The only real difference between the candidates was over whether prosecutors’ files should be open to public review. A 1991 Wisconsin Supreme Court ruling exempted these records. In 2005, then-Gov. Jim Doyle, a former state attorney general, said he supported ending this exemption, but the idea never gained traction.

Schimel, Happ and Richards all said such files should generally remain closed to protect crime victims, confidential informants and other sensitive information. But Ozanne said he would tend to release such records in completed cases and redact private information as needed.

“The public has an interest in the integrity of a criminal investigation and possible prosecution,” Ozanne said.

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. Hall, a reporter at the Wisconsin State Journal, is the group’s secretary.

Full candidate responses:

Susan Happ

Ismael Ozanne

Jon Richards

Brad Schimel

Last Updated on Thursday, 31 July 2014 15:53

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

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

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
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