Last Updated on Monday, 05 January 2015 13:51
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, 03 November 2014 12:55
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 Friday, 29 May 2015 12:01
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 Wednesday, 01 October 2014 08:04
Mary Burke was succinct. She used a single word —“Yes” — to answer four of six questions
from the Wisconsin Freedom of Information Council about open government.
The Democratic candidate for governor responded affirmatively when asked if she would:
- Release a detailed weekly calendar in advance listing her appointments, public meetings and travel schedule.
- Support ending the Legislature’s exemption from records retention rules in place for other state and local officials.
- Back making public bodies record closed meetings in case of a dispute over what was discussed.
- Conduct all public business on public computer networks and devices.
Those are responses that should please open government advocates.
Burke, a Madison School Board member making her first run for statewide office, also said in her written responses that the Legislature should be subject to the state’s open meetings law, though she continues to believe party caucuses should be able to meet in secret. Why?
“To limit the potential that lobbyists — who would be allowed to attend if caucuses were subject to this law — could have any more influence than they already do,” she said.
We believe she doth protest too much. We’d gladly allow dozens of lobbyists to attend the caucuses where much of the real business of governing (and party arm-twisting) gets done if members of the media and public could also attend.
Gov. Scott Walker, her Republican opponent, was less direct.
In his written responses, Walker sidestepped the question about releasing calendars in advance, saying he makes his calendars available monthly upon request “as required by state law.” He has continued predecessor Jim Doyle’s approach of pre-announcing only select events, often with less than 24-hours’ notice.
Walker also declined to say whether the Legislature should abide by the open records law or be subject to the meetings law, including party caucuses. Instead, he responded that he retains “all public records, including email, for public inspection upon request.”
According to Walker, it’s up to the political parties to open their caucuses, which they could do without a change in state law. He’s right on that point, and we’re still waiting.
And, in response to the question about conducting the public’s business on public electronic devices, he said his office “instituted a clear ethics and professional code of conduct policy for all staff and cabinet officials in 2011. All public business done on any device, public or personal, is subject to Wisconsin’s strong open records laws.”
That’s heartening. As many people know, Walker’s office when he was Milwaukee County Executive set up a secret email system so staffers could evade the records law.
We also asked both candidates to describe the state’s biggest open government problem.
Walker cited the inability of the public to review the state’s finances online — a problem he takes credit for having solved.
“Now the state’s checkbook is online at http://openbook.wi.gov,” Walker said. “Recently, Wisconsin was rated one of the most transparent states in the nation because of this reform.” He vowed to expand the functionality and add local governments.
Burke, in turn, called for disclosure of the source of issue-ad funding.
“Any group spending money in an election on an issue should have to disclose where their money is coming from and abide by campaign finance laws like any other group or candidate,” she said.
Here are the full candidate responses:
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.