Wisconsin Freedom of Information Council

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Action alert on proposed exemption for records of UW research

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The Wisconsin Freedom of Information Council is issuing an action alert regarding Gov. Scott Walker's proposal to exempt records of University of Wisconsin research from the state's Open Records Law. The governor's budget bill, SB21, on P. 181-182, would create this new section of the statute:

19.36 (14) UNIVERSITY OF WISCONSIN SYSTEM AUTHORITY. Any authority may withhold from access under s. 19.35 (1) information in a record that is produced or collected by or for the faculty or staff employed by the University of Wisconsin System Authority in the conduct of, or as a result of, study or research on a commercial, scientific, or technical subject, whether sponsored by the University of Wisconsin System Authority alone or in conjunction with an authority or a private person, until that information is publicly disseminated or patented.

This would create a blanket exemption for all records of UW research that university officials choose to not disseminate or patent. It would be invoked to prevent public access to records regarding controversial research. It would keep the public from knowing details about the conduct of publicly funded institutions and allow abuses to go undetected.

This is the third attempt in recent years to shut off public access to records of university research.

The first prior attempt occurred in May 2013. University officials asked the Legislature's Joint Finance Committee to insert language into the budget to shut down access to records of UW-Madison research. They were not successful. A memo to lawmakers circulated as part of this effort specifically cited the UW's desire to avoid having to respond to requests for research involving the use of animals, an area of study that even defenders believe raises ethical questions that warrant public awareness and discussion.
Then, in February 2014, lawmakers introduced AB 729 just days before holding a public hearing on same. The Legislative Reference Bureau's analysis said the bill would exempt "information, data, or records produced or collected by or for faculty or staff of [UW System] institutions as a result of study or research on commercial, scientific, or technical subjects. The exemption applies whether or not the study or research is sponsored by the institution alone or in conjunction with a governmental body or private concern. The exemption expires when the information is publicly released, published, or patented."

State Rep. Steve Nass, then chairman of the Assembly Committee on Colleges and Universities, now a member of the state Senate, objected to this change. It was removed from the bill prior to the hearing.

Legislation deemed dead on arrival by the Joint Finance Committee and an Assembly committee should not find new life in the governor's budget. Any such change should be deliberated as stand-alone legislation, on its merits. Or lack thereof.
Current law already allows state universities, like any state or local public authority, to deny access to records if they can make the case that the harm from release outweighs the presumption that the public is entitled to access. This bill would eviscerate that standard for the University of Wisconsin. No longer would our universities need a good reason, or any reason, to deny access.

We hope that advocates for open government in Wisconsin will unite in opposition to this bad idea.
Last Updated on Thursday, 05 February 2015 11:45
 

February: State needs to fix drivers records access issue

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One of Wisconsin’s most vexing open records issues could be headed toward resolution.

For the past several years, problems have arisen over differing interpretations of how the federal Driver’s Privacy Protection Act should affect access to records here. Journalists and others contend it was never meant to block the release of routine information in police reports, while municipalities worry they’ll face punitive action by releasing it.

The Act was passed in 1994 to protect disclosure of personal information obtained through Department of Motor Vehicle records. But it has never affected the release of information gathered in police reports, until recently.

In 2012, a federal appeals court ruled that the village of Palatine, Illinois, may have violated the act by leaving parking tickets, which included personal information, on the windshields of motorists. The district court later ruled the village did not violate the DPPA; an appeal of that ruling is pending.

Some Wisconsin police departments, instructed by their insurers, began redacting personal information from police reports. No other state — not even Illinois, where the Palatine case occurred — adopted this interpretation.

Suddenly, journalists in Wisconsin could no longer conduct one of their basic job functions — reporting on issues of public safety.

The New Richmond News, one of the newspapers that received such blacked-out reports, sued the city of New Richmond, over these redactions. The paper prevailed in circuit court, but the city appealed. The case is now before a state court of appeals and could end up in the state Supreme Court sometime this year.

In June 2014, when nearly 80 municipalities were following the black-out interpretation, the Wisconsin Newspaper Association reached an interim compromise with the League of Wisconsin Municipalities. The non-binding agreement allows for release of full reports as long as the requester uses an agreed-upon form to indicate who they are and verify that the use of information is related to public safety.

This compromise was largely successful, allowing reporters to resume reporting on important issues. It also relieved busy police clerks of endless redaction efforts.

But a few local entities continue to disregard this agreement, so there remains a need for clarification by the courts.

For instance, the Taylor County Sheriff’s Office continues to redact personal information, while the Medford Police Department, located in the same building, releases it.

The DPPA was enacted to protect public safety. That’s the same reason the open records law holds that police reports are public. These two laws are not at odds with one another.

In my former role as a reporter, I relied on police reports to bring to light a series of improper police pursuits that caused accidents involving innocent, uninvolved motorists. One victim, a pregnant woman trying to get out of the officers’ path, was severely injured and blamed for the collision. Access to the police report — including the names and contact information of the woman and several witnesses — allowed me to expose egregious police misconduct that prompted change.

Police and accident reports are basic public records, and the ability to obtain them should not be compromised. We look forward to the courts bringing clarity to this issue, and upholding 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. Julia Hunter, a former newspaper reporter, is the member services director for the Wisconsin Newspaper Association.

Last Updated on Thursday, 05 February 2015 14:00
 

December: HIPAA’s reach is often overextended

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Recently, I was told by a court official in Outagamie County that federal law prohibited the release of the name of a man I had just heard speak in open court. He was a participant in the county's Drug and Alcohol Treatment Court. He had been charged with driving while intoxicated as a fourth offense, but was offered a chance to go through a treatment program instead of serving jail time.

I attended the proceeding as a reporter for the Appleton Post-Crescent, working on a story for Gannett Wisconsin Media’s statewide probe into repeat drunken drivers. The man had made a point about the costs of the program and I wanted to verify his charge history.

But when I asked for his name, the court official said it could not be released, citing the federal Health Insurance Portability and Accountability Act of 1996. That law, commonly called HIPAA, protects private health information.

It also, as this episode attests, is often misapplied.

In this case, there was no valid reason for withholding the man's name, and after a discussion with the circuit judge, I was able to obtain it. I ended up using his comment but not naming him in my story.

This was a public program, run by publicly paid officials, involving criminal defendants serving court-ordered sentences. The decision of whether to use this person’s name should be up to the media, not the court official.

As the Reporters Committee for Freedom of the Press has noted, HIPAA remains a “prickly” obstacle for journalists. To help reduce conflicts and confusion, the group has sorted out just who and who isn’t impacted.

Health care organizations like hospitals, life insurers, ambulance services and public health authorities are all subject to HIPAA rules. Firefighters, police, court officials, reporters and patients themselves are not.

Neither are public officials who have nothing to do with the delivery of health care services. And yet, in one instance, a Louisiana State University representative told reporters he couldn’t discuss a player’s knee injury. “Due to these new medical laws, our hands are tied,” the official said.

Often, the most valuable information available to reporters is found on health facility directories, which are not protected by HIPAA. Hospitals may release an individual’s name, location in the facility and general condition. HIPAA also doesn’t bar reporters from interviewing patients in a waiting room.

Statistical information related to hospitals, including their billing data, is not covered by HIPAA. Much of this information can be released electronically without names attached.

The Association of Health Care Journalists has produced another useful list of what HIPAA does not protect, including police and fire incident reports, court records, birth and autopsy records.

Felice Freyer, the association’s treasurer and a member of its Right to Know Committee, said HIPAA overreach is widespread.

“Often times, people are unsure about the law and can’t be bothered to check so it’s easier to say ‘no’ and refer to HIPAA,” said Freyer, a health care reporter for the Boston Globe. “Frequently, hospitals say they can’t let you talk to a patient, but that’s not true.”

No one disputes that people have a right to privacy when it comes to personal medical matters. But that right should not be taken to absurd lengths, beyond what the law prescribes.

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. Nick Penzenstadler, formerly with the Post-Crescent in Appleton, is a reporter for USA Today.

Last Updated on Friday, 29 May 2015 12:01
 

January: Official calendars are a basic public record

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It’s a pretty simple question for a public official: “What exactly do you do with your time?”

Sometimes, the best way to answer that question is to obtain the official’s calendar, through the state’s open records law.

In my work as a reporter, I’ve done this for the state treasurer and his staff, who work for an office with few official duties. I’ve also used the monthly calendars of Gov. Scott Walker to plot his travel and track his day-to-day meetings.

So when I wanted a better understanding of how the duties of Sheboygan Mayor Mike Vandersteen and Chief Administrative Officer Jim Amodeo overlap, I asked to see their calendars.

Amodeo’s response was simply, “Oh, OK.”

Vandersteen’s response was more terse. While he said he would be willing to discuss his day-to-day duties, he considered the request a burden, given the small size of his staff and the fact that his calendar contained personal items.

Both officials eventually provided these calendars, but with a letter asserting that these documents did not actually constitute a record under state law. As such, the letter said, they had no obligation whatsoever to hand them over.

It was a bit bewildering. How could these records, so basic to the performance of their official duties, be exempt from the law?

The letter’s reasoning was that calendars are basically “akin to drafts” or notes prepared for the mayor or administrator’s personal use. Wisconsin’s open records law exempts such drafts or notes from disclosure requirements but construes this exemption narrowly, like all exemptions.

The city’s argument rests on a few out-of-state cases — one from Kentucky and one from California — in which courts upheld the denial of access to calendars. In short, both courts decided that the public’s interest in disclosure was outweighed by the government’s interest in keeping those records under wraps.

In a more recent case, the city of Philadelphia successfully argued that the calendar of its mayor and city councilmen were not records. A Pennsylvania appellate court found that while they may carry an official purpose, the calendar itself is more of a “working paper” that is personal to the office.

But these cases mean little given Wisconsin law’s broad presumption of access and the narrowness with which courts have interpreted the exemption for drafts.

Based on state case law and guidance from the Wisconsin attorney general, the Wisconsin Freedom of Information Council advises: “Once a document is shown to anyone besides the originator or a person working on his or her behalf, it is no longer a draft.”

Vandersteen stated that redacting his calendar and turning it over was simpler than waging a long legal battle. But that means the issue, and his interpretation, will not be tested in court.

Amodeo said he simply didn't see the use in withholding his calendar, especially given the negative publicity that could follow: “I mean, if I shut you down and say, ‘No, you can’t have it,’ then you’ll just end up writing something on that. Then everyone starts asking, ‘Well, what does he have to hide?’ ”

Therein lies the absurdity of such a dispute: You don’t need a legal requirement to understand that the public has a right to know what their officials are up to. Erecting barriers to the most basic information is not just against the law — it’s also politically unwise.

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. Jason Smathers is a reporter with the Sheboygan Press.

Last Updated on Monday, 05 January 2015 13:51
 

November: Cops in shootings should be promptly named

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Following the Aug. 9 police shooting of Michael Brown, an unarmed teenager in Ferguson, Missouri, citizens and the public demanded to know the involved officer’s name. The Ferguson Police Department stirred national attention, and some outrage, by waiting six days to reveal it: Officer Darren Wilson.

Wisconsin has Ferguson beat. On April 30, 2014, a Milwaukee police officer shot Dontre Hamilton 14 times, killing him. Hamilton, 31, was unarmed and had a history of paranoia and schizophrenia, according to his family. Yet Milwaukee police did not confirm the identity of the officer who shot him for more than four months.

True, the department disclosed the officer’s name to Hamilton’s family in July, more than two months after the incident, and the family later shared it at a community forum. But the department did not publicly name Officer Christopher Manney as the shooter until October. 

The department said it was just following past practice and was waiting to see whether the district attorney would file charges against the officer before releasing a name.

But in fact, Chief Edward Flynn identified Manney after the department’s internal investigation was completed, when he announced the officer’s termination from the force. No charging decision has yet been made.

There is obvious public interest in knowing the identities of law enforcement officers involved in shootings. Prompt identification of officers helps preserve public confidence in law enforcement and ensure correct information.  It also alerts the public earlier if other complaints and concerns have arisen about the officer.

Jonathan Safran, an attorney for the Hamilton family, told WISN 12 that citizens have a right to this information because “this is a publicly paid individual employed by the city of Milwaukee, and the police department is being paid by taxpayer dollars.”

Waiting for an indeterminate date to identify officers involved in citizen shootings can unreasonably delay release of this important information.  Internal and criminal investigations can stretch for weeks or months, as they did in Hamilton’s shooting. 

Complicating matters, there seems to be little consistency in how police departments approach this issue. Some routinely release the names of officers involved in fatal shootings immediately after those events.

Three days after the 2012 fatal police shooting of Paul Heenan, an unarmed local musician, Madison police released the name of the involved officer. News media then reported on other incidents involving the same officer, including an instance where he was suspended for shooting at the tires of a fleeing car.

The officer, Stephen Heimsness, later resigned after the department sought his dismissal for charges unrelated to the shooting.

In Ferguson, police said they withheld the name due to death threats against the officer and concerns for his safety. “Right now, people want it so they can destroy that person’s life,” Police Chief Thomas Jackson said. “That’s the only reason that group’s asking for it.”

While Ferguson was surely a charged situation, the police chief’s statement reflects cynicism and an unfortunate distrust of citizens. The department’s six-day delay also contributed to brewing frustration, lack of confidence in the department, and bad information. Hackers even attacked the department’s computers to learn the name, which resulted in the wrong person being named.

The Milwaukee Police Department, which has promptly named officers involved in other fatal shootings when it believes they have acted heroically, was wrong to withhold Manney’s name for so long.

There are many downsides, and little benefit, to waiting for internal or external reviews to be completed before providing the public with accurate information about officer-involved shootings. The Milwaukee Police Department and other police departments should reconsider their practices.

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, at attorney with  McGillivray Westerberg & Bender, is the group's vice-president.

Last Updated on Monday, 03 November 2014 12:55
 


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