Wisconsin Freedom of Information Council

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March: Records advocates plan traveling show

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Among the many remarkable things about the defeat of the proposed overhaul of the Wisconsin Public Records Law over the July 4 weekend last summer was the way the media, open government groups, advocacy organizations on the left and right, and the public coalesced to point out how ill-conceived the idea was.

The reaction to this sneak attack on open government was immediate, overwhelming and decisive. No other issue in state government in recent years has generated such a uniform—and effective—response. Gov. Scott Walker and the legislature leaders backed down within 48 hours.

Lawmakers seemed chastened, but advocates of open government must remain vigilant. In fact, the efforts to restrict the public’s access to information have not stopped.

It’s not a stretch to suggest that open government in Wisconsin is threatened; some might say it’s under attack. That’s because the attempt to gut the records law is just one of several examples from the past year suggesting lawmakers’ disregard for the public’s right to know.

In response, the Wisconsin Freedom of Information Council and the Madison chapter of the Society of Professional Journalists are joining with open government advocates from both sides of the political aisle and media groups to bring what we’re calling the Open Government Traveling Show to communities across the state.

For three days in mid-March, during the nationwide celebration of open government known as Sunshine Week, we’ll be offering a 90-minute tutorial and presentation on the state’s open records law in eight Wisconsin cities. The goal is to help Wisconsin residents understand how the law can be used and why it is important.

In addition to WFOIC, SPJ-Madison and lawyer April Barker of Schott, Bublitz and Engel S.C., the conservative groups the MacIver Institute for Public Policy, the Wisconsin Institute for Law and Liberty and the liberal groups the Wisconsin Democracy Campaign and the Center for Media and Democracy will take part in the Open Government Traveling Show. Despite their differences on many policy issues, these groups agree on the importance of open government.

And in fact, representatives of the MacIver Institute and WILL, along with Republican Attorney General Brad Schimel, were among the most influential voices last year opposing the records changes at the Capitol.

Also supporting the Traveling Show is the Wisconsin Center for Investigative Journalism.

From March 15 to 17, the tour will visit eight cities: La Crosse, Eau Claire, Wausau, Green Bay, Appleton, Sheboygan, Waukesha and Janesville. If it’s successful, we’ll consider another tour in the future.

Wisconsin’s open records law is a vital component of our representative democracy. It should be strengthened, not weakened. And we must fight to protect it.

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 Mark Pitsch is an assistant city editor at the Wisconsin State Journal and president of the Madison chapter of the Society of Professional Journalists..

Last Updated on Tuesday, 01 March 2016 17:31

Open Government's Advocates to Take Show on the Road

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February 23, 2016

Contact: Mark Pitsch, (608) 252-6145; Bill Lueders, (608) 669-4712

Advocates of open government in Wisconsin are planning a three-day, eight-city informational tour to highlight the importance of the state’s open records laws, in the wake of unprecedented attacks from state lawmakers and others.

“An open society depends on open government. Wisconsin residents understand that,” says Mark Pitsch, president of the Madison chapter of the Society of Professional Journalists and an assistant city editor at the Wisconsin State Journal. “Last summer’s attempt to gut the records law is just one of several recent examples of official disregard for the public’s right to know. It’s time for education and vigilance.”

The “Open Government Traveling Show” will take place from Tuesday, March 15, through Thursday, March 17, as part of national Sunshine Week, the annual “celebration of access to public information.”

The events - free and open to the public - are aimed at helping Wisconsin residents understand the open records law and how to use it. Each 90-minute presentation will feature a tutorial on the records law and examples of its use by journalists and advocates.

Participants will include representatives of the Wisconsin Freedom of Information Council, the Madison chapter of the Society of Professional Journalists, the Wisconsin Institute for Law & Liberty, the Center for Media and Democracy, the MacIver Institute for Public Policy and Wisconsin Democracy Campaign.

The tour is also supported by the Wisconsin Center for Investigative Journalism. Each stop has its own local sponsor.

The traveling show will take place in the following locations:

La Crosse: March 15, 2 p.m. La Crosse Public Library. Local sponsor: La Crosse Tribune.

Eau Claire: March 15, 7 p.m. Centennial Hall, Room 1614, UW-Eau Claire. Local sponsor: Eau Claire Leader-Telegram, UW-Eau Claire chapter, Society of Professional Journalists

Wausau: March 16, 10 a.m. Marathon County Public Library. Local sponsor: Wausau Daily Herald-USA TODAY NETWORK-Wisconsin

Green Bay : March 16, 2 p.m. Green Bay Public Library. Local Sponsor: Green Bay Press-Gazette-USA TODAY NETWORK-WISCONSIN

Appleton: March 16, 7:30 p.m. Appleton Public Library. Local sponsor: Appleton Post-Crescent-USA TODAY NETWORK-Wisconsin

Sheboygan: March 17, 10 a.m. Sheboygan Public Library. Local sponsor: Sheboygan Press-USA TODAY NETWORK-Wisconsin

Waukesha: March 17, 2 p.m, Waukesha Public Library. Local sponsor: Schott, Bublitz and Engel S.C.

Janesville: March 17, 7 p.m. Blackhawk Technical College. Local sponsor: Janesville Gazette


February: Concerns linger over ‘transitory’ records

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The last six months have been a roller coaster for Wisconsin’s open records law. After the Legislature’s failed attack on the law over the Independence Day holiday, August brought a new threat.

A little-known state board expanded the definition of “transitory records,” which can be immediately destroyed. Once this action was revealed, there was an impressive outcry from the public and that change was dialed back last month. But there is still cause for concern.

The state Public Records Board sets retention schedules for state and local government records. Retention is important — if records aren’t retained, they can’t be requested and obtained by the public. State law makes retention the rule, and records can be disposed of only if the Public Records Board grants permission. The board’s mandate is to “safeguard the legal, financial and historical interests of the state in public records.”

But in 2010, the board made the questionable decision to allow immediate deletion of some correspondence. Such “transitory records” were deemed of such temporary value as to not require any retention. State agency employees could simply delete these records after they were created, without any further oversight.

On August 24, 2015, the board held a meeting and expanded the transitory records category. Now it included not just correspondence, but other documents such as “interim files” and “recordings used for training purposes.”

The board’s meeting notice and minutes contained no indication of this change, later prompting the Wisconsin Freedom of Information Council to file an Open Meetings complaint with the district attorney. The day after the new definition was passed, the Walker administration notified the Wisconsin State Journal that records it previously requested had already been destroyed as “transitory.”

News outlets then reported the Public Record Board’s actions, and the reaction was swift. Critics said the change undermined the records law and the public’s right to know, inviting abuse. They pointed out that records the board defined as “transitory” were actually of significant public interest. There were also concerns that whole categories of electronic communications would be deleted as “transitory.” The Public Records Board was flooded with nearly 1,900 emails.

Fortunately, the board listened. At a meeting in January, it rescinded its August decision to expand the definition of “transitory records.”

But the danger has not passed. The old, 2010 definition of “transitory records” is still in place. Records custodians can still immediately delete some correspondence. Comments from board members in January suggested they are resistant to eliminating this category, despite state law suggesting that no records can be instantly deleted. Board president Matt Blessing said the issue would be revisited at a future meeting. The board next convenes on March 7.

Another positive step is a bill being circulated by Democratic lawmakers that would create penalties for destroying public records. As Assembly Minority Leader Peter Barca observed, “There’s no recourse if agencies destroy records.” The bill would shore up existing provisions in the law that deter premature destruction of public records.

Let’s hope one or both of these potential fixes advance. Otherwise, Wisconsin’s weak records retention requirements will continue to undermine 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 nonprofit group dedicated to open government. Christa Westerberg is an attorney at Bender Westerberg LLC in Madison, and co-vice president of the Wisconsin Freedom of Information Council .

Last Updated on Monday, 01 February 2016 12:38

Action Alert on Bill to Suppress Court Records in Wrongful Convictions

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The Wisconsin Freedom of Information Council is issuing an Action Alert on AB-460, a bill whose main purpose is to raise the compensation level for state victims of wrongful imprisonment. The bill unanimously passed the state Assembly on Tuesday.

Our concern is with how the bill would affect public access to case recordsmuch more significantly than has beeen publicly acknowledged. The bill as passed would not just require the removal of information on wrongful convictions from the state's online records system, or WCCA, as The Associated Press reported in October. It would actually completely shut off access to court records related to wrongful convictions.

According to the Legislative Reference Bureau analysis, "Under the bill, if a person's conviction for a crime is reversed, set aside, or vacated on grounds consistent with the person's innocence, and the person is ordered released from prison by a trial court, the court is required to grant the person, upon request [remedies including] sealing of all records related to his or her conviction."

The actual bill language calls for: "Sealing of all records related to the case. Records sealed under this section shall be accessible to the person but may not be available for public inspection or through the consolidated court automation program case management system."

This is a sweeping and radical requirement, one that will dramatically compromise the ability of media and the public to examine what went wrong in cases in which things are known to have gone terribly wrong.

The Wisconsin Freedom of Information Council opposes any reduction in public access to court records of wrongful convictions. As the Wisconsin State Journal noted in a Dec. 18 editorial , which assumed that the impact would be only to online court records:

"Rather than hiding its terrible mistakes from the public, the state should add information to electronic public records so it’s perfectly clear the individuals were victims, not criminals. It’s important for citizens to know their state justice system sometimes gets verdicts wrong."

Such concerns are greatly magnified when applied to all court records regarding wrongful convictions. The Council calls on advocates for open government to oppose this effort to protect the perpetrators of wrongful convictions from accountability. We urge that the Senate remove or amend this language, if and when it takes the bill up.

Last Updated on Thursday, 11 February 2016 12:33

January: A tough year for transparency

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In 2015, Wisconsin advocates for open government faced a disquieting truth: If we want to preserve our state’s tradition of transparency and accountability, we must fight for it, against powerful players who will be fighting back.

The most egregious attack came on the cusp of the July 4 holiday weekend, when the Legislature’s Joint Finance Committee inserted provisions into the state budget to gut the state’s open records law. A tremendous backlash from across the political spectrum forced lawmakers to back down.

Just three weeks later, the attack’s main architect , Assembly Speaker Robin Vos, R-Rochester, ordered the drafting of a bill to exempt the Legislature from the records law, allowing all the secrecy it desires. That intent is apparently still alive.

And while some secrecy provisions were pulled from the budget, one sailed through, creating different rules for the University of Wisconsin System than for all other state agencies regarding the naming of finalists. Henceforth, the UW can pick athletic coaches and fill key academic positions without revealing which applicants were passed up.

Another blow came this fall, when Vos added a bill amendment late in the process to end the longstanding requirement that significant donors to political campaigns reveal where they work. The Legislature and Gov. Scott Walker, brushing off concerns that this will make it harder to track concerted special interest spending and even illegal activity, passed the bill into law.

Moreover, the Walker administration is embracing dubious interpretations of legal language to shield and even destroy records of public interest. It claims a “deliberative process” exemption that appears nowhere in state law lets it deny access to records of bill-drafting communications. A lawsuit over this practice is now playing out.

More recently, the administration has begun asserting that a new definition of “transitory records” approved by the state Public Records Board in August lets it destroy certain documents. This has happened at least twice, over records showing who has visited the governor’s executive residence and text messages between state officials and a private company that seems to have absconded with a state handout.

The Wisconsin Freedom of Information Council has asked the Dane County district attorney to prosecute the Public Records Board for violating the Open Meetings Law in changing its definition of transitory record without flagging this on its meeting agenda. The board chair has since vowed to revisit the matter.

But Walker administration officials have refused to explain their use of this definition, which does not mention text messages or visitors logs. Elisabeth Winterhack, an attorney for the Department of Administration, and DOA spokesman Cullen Werwie have not responded to repeated requests for answers to simple questions, including whether the Walker administration is continuing to destroy records showing who visits the executive residence.

Meanwhile, the Wisconsin Center for Investigative Journalism has reported that two former high-ranking Walker administration officials say they were warned not to use official email accounts for important business, to avoid creating a paper trail. The administration denies it.

We are seeing, in words and action, the beginning of a culture of contempt for the public’s right to know, embedded deeply within state government. That should be of grave concern to every resident of the Wisconsin, as we prepare for future battles.

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 group’s president.

Last Updated on Tuesday, 29 December 2015 13:40

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