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August: Email ruling a blow to openness

By Bill Lueders Your Right to Know - 2010 Columns
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It was like those legal dramas on TV. The judge, ruling from the bench, always starts out paying homage to some legal principle or perspective. Then there’s a "but" and the judge shifts gears, coming down firmly on the other side.

So it was with the Wisconsin Supreme Court’s recent ruling in a case known as Schill v. Wisconsin Rapids. Chief Justice Shirley Abrahamson, writing for the majority, began her decision by praising the state’s traditions of openness.

"If Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State," wrote Abrahamson, saying officials here have for many years "kept a strong commitment to transparent government."

And then she proceeded to take a small but significant step back from that commitment.

At issue was a citizen’s request for emails sent by five teachers in the Wisconsin Rapids school district, specifically to check how much work time they were spending on purely personal business. The school district - having made it clear to teachers that personal emails sent on their work computers are not private - agreed to comply. The teachers sued to block this, and the case ended up before the Supremes.

The court seemed torn in different directions, issuing four separate opinions in a complex and confusing 5-2 ruling. But, in the end, a majority concluded that purely personal communications by public employees should not be subject to release, unless these become part of a disciplinary investigation.

That might sound at first like a sensible thing to do - since, as Abrahamson argued, these purely personal communications have "no connection to a government function."

But direct a little sunshine on this interpretation and it quickly withers and dies.

For starters, communications from teachers and other public employees sent on government equipment are not private, and the court’s ruling did not make them so. The employer still can review what is being sent and impose discipline on those who violate the rules set for use of this technology.

Public employees, like most private ones, would be well-advised to not use their work computers for sensitive personal communications. That leaves only personal communications that are not sensitive - pick up the kids, get a loaf of bread. And what’s the big deal if these are released?

The court, incredibly, made its ruling without ever reviewing the records that would have been released. It simply took the word of others as to their content, and made it the law of the Wisconsin that, from this time forward, the public must too.

Every action that sanctions official secrecy creates opportunities for abuse. It’s only a matter of time before some school administrator decides that teachers who spend their work time on some pet project are engaged in purely personal business unrelated to their "government function."

The result in Schill v. Wisconsin Rapids was not unanticipated and it does not spell disaster for the state’s open records law. As Attorney General J.B. Van Hollen has explained, the public still has the right to obtain information about employees’ use of e-mail, just not the content.

But the decision is still a step in the wrong direction. Justice Patience Roggensack, in strong dissent, said the "broad exemption" carved out by the ruling "contravenes Wisconsin’s long history of transparency in and public access to actions of government employees. The lead opinion is contrary to the letter and spirit of the Public Records Law and is a disservice to the public’s interest in government oversight."

Joining Roggensack in this dissent is Justice Annette Ziegler. Both deserve to be applauded for seeking to uphold the state’s traditions of openness, not just paying them lip service on the way to undermining them.

Your Right to Know is distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), dedicated to protecting open meetings and open records. Bill Lueders is the group’s president.

 

August: SEC working in secrecy

By The Racine Journal Times Your Right to Know - 2010 Columns
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SEC, as it turns out, is not an acronym for Securities and Exchange Commission, it's an abbreviation for SECRECY.

That's the only conclusion we can draw after reading that the agency believes it no longer has to comply with the Freedom of Information Act under the new Wall Street reform signed into law last month by President Barack Obama.

The SEC rejected an information request from Fox Business News in late July saying that a provision of the reforms exempts it from disclosing documents related to its "surveillance, risk assessments, or other regulatory and oversight activities."

Or other regulatory activities? That is a wide blanket, indeed - a blanket that covers the entire actions of the agency.

What is particularly incendiary about the agency's stance is that President Barack Obama has insisted his administration would be one of openness - that "transparency and the rule of law would be the touchstones of this presidency."

Pardon us, Mr. President, but your transparency is slipping.

According to news accounts, you said the Dodd-Frank reforms would ensure "accountability and responsibility."

That position was echoed by SEC spokesman John Nester who said, "We are expanding our examination program's surveillance and risk assessment efforts in order to provide more sophisticated and effective Wall Street oversight . . . Because registrants insist on confidential treatment of their documents, this new provision also removes an opportunity for brokers, investment advisers and other registrants to refuse to cooperate with our examination document requests."

The SEC's Faustian bargain in essence says, "Give us your information, we'll go over it, and we'll keep it all secret." Certainly, not all the documents the SEC deals with or information involving ongoing investigations should be subject to release. But neither should there be an agency-wide exemption on the release of information to the public or the press - information that not only shines a light on the agency's actions, but can also reveal its shortcomings. Not even the CIA has a such blanket exemption.

The SEC is telling the American public: Trust us, we'll protect your interests.

The answer, unfortunately, is that we don't.

Ask any of Bernie Madoff's victims exactly how far their trust goes and how well they think the SEC did its job.

The Securities and Exchange Commission has forgotten who it works for.

It works for the public.

Congress - and that would start with U.S. Rep. Paul Ryan and Sens. Russ Feingold and Herb Kohl - should excise this aberrant and noxious amendment that shuts the public out of its own business and let's the SEC operate in the dark.

 

 

July: Public info belongs on the Internet

By Bill Lueders Your Right to Know - 2010 Columns
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Albert Einstein famously said, at the advent of the nuclear age: "The unleashed power of the atom has changed everything, save our modes of thinking, and we thus drift toward unparalleled catastrophe."

Substitute a few words and it reflects how some people feel about the information age: "The unleashed power of the Internet has changed everything, save our eagerness to snoop on each other, and we thus drift toward the end of privacy."

Today, thanks to the Internet, it’s easier than ever to get information on others. Naturally, some people don’t like this, especially when the information is disseminated by government.

But I would argue that access to this data is, by and large, a good thing.

Wisconsin’s strong open records law allows public access to nearly all documents and data kept by state and local governments. This law has served the state well, enabling citizens to educate themselves on the workings of government and hold public officials accountable.

Conflicts arise, though, when information collected by the government about persons and property is put online. And while things like medical records and Social Security numbers are properly shielded from release, other sensitive information is available for all to see.

For instance, anyone sued or charged with a crime can found on a Wisconsin website, even if the underlying action was ultimately dismissed. I sympathize with those who find this objectionable, but it’s simply an illusion to think people will no longer have access to this information if government stops putting it out. Private data miners will rush in to fill this void, for a nominal fee, without the checks on accuracy that the state system provides.

Increasingly, government agencies are putting data online because it’s cheaper and more convenient. I would argue that this, too, is appropriate, as public officials should be saving money whenever possible.

One example is a system called ELAM - for Enterprise Land and Asset Management - now being implemented by the city of Madison. It will serve as a vast repository of public information regarding city licenses, permits or infrastructure - everything from property maintenance complaints to restaurant inspection records to repair orders for broken street lights.

The city is spending $3.9 million to create this system, which it reckons will save at least $13.5 million in staff time during the first ten years.

City employees will be major users - no more pulling files in dusty backrooms when the data can be assessed from a laptop in the field - but the system will be available to everyone.

"I think it’s something that is going to take us into the next level of web-based governance," Madison Mayor Dave Cieslewicz told the Wisconsin State Journal. He anticipates a high level of public interest: "Madison is such a wired city. No matter what we put out there, people use it."

And that is their right. Public information is public for a reason.

A property owner should be able to find if a similar house on an identical lot next door is paying significantly less in property taxes because of a lower assessment. A prospective tenant ought to be able to learn if a given apartment has uncorrected building code violations. And diners have a right to check if the restaurants they visit have been cited for roaches.

All of this information is already available, and has been for years. It’s just much easier to obtain now, thanks to new technologies.

Of course, in exchange for being trusted with this information, the public should use it in sensible and responsible ways. Just because a restaurant was written up for having a refrigerator two degrees warmer than code prescribes (and promptly corrected the problem) doesn’t mean people who eat there are putting their lives at risk.

The unleashed power of the Internet has given the public unprecedented access to information, and there is no way to put the genie back in the bottle.

To some extent, though, all of us need to change our modes of thinking.

Your Right to Know is distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), dedicated to protecting open meetings and open records. Bill Lueders is the group’s president.