Wisconsin Freedom of Information Council

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Newsmaker Luncheon to Feature Open Government Traveling Show

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The Milwaukee Press Club will host the Open Government Traveling Show – a panel discussion about the Wisconsin open meetings and open records laws – at a Newsmaker Luncheon on Wednesday, March 15, 2017 as part of the national celebration of open government known as Sunshine Week.

The public is invited to attend the event from 11:45 a.m. to 1:30 p.m. at the Newsroom Pub in downtown Milwaukee at 137 E. Wells St.

The Open Government Traveling Show is presented by the Wisconsin Freedom of Information Council and SPJ-Madison. It features a brief tutorial on the state’s open meetings and records laws and examples of how the media, the public and advocates use the law.

The panel includes:
• April Barker, open government expert and an attorney with the law firm Schott, Bublitz & Engel, s.c. based in Waukesha.

• Lisa Graves, executive director of the Center for Media and Democracy, a national watchdog group that investigates and exposes the influence of on public policy.

• Tom Kamenick, deputy counsel and open government specialist with the Wisconsin Institute for Law & Liberty, which seeks to advance the public interest in the rule of law, individual liberty, constitutional government and a robust civil society.

• Bill Lueders, president of the Wisconsin Freedom of Information Council and a veteran Wisconsin journalist, now managing editor of The Progressive Magazine.

• Mark Pitsch, president of the SPJ-Madison and an assistant city editor at the Wisconsin State Journal.

For more information or to register for this event visit this Milwaukee Press Club page.

 

February: Trump raises stakes for press, public

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Two days before the new president’s inauguration, the Society of Professional Journalists and dozens of other media and government transparency groups sent a letter asking Donald Trump for a meeting to discuss his administration’s relationship with the press.

Among other things, the groups wanted Trump to affirm his commitment to the First Amendment, assure media access to his presidential activities, and allow expert government employees to talk to the media rather than muzzle them in favor of public relations officials.

Trump has yet to respond.

However, the new administration issued orders to employees of the Environmental Protection Agency and the Department of Agriculture not to convey information to the media or public. Officials also imposed a news blackout at the Department of Transportation.

Meanwhile, Trump claimed, with no evidence, that up to five million illegal voters participated in the election; his White House spokeswoman used the term “alternative facts” to explain false claims that Trump’s inauguration audience was the largest ever; and chief strategist Steve Bannon called the news media an “opposition party” that should “keep its mouth shut”—views that Trump himself later endorsed.

All this happened within Trump’s first two weeks in office.

Where does that leave us, as members of the press and guardians of your right to know what government is doing?

First, we must report on official efforts to withhold information from the public—which is, after all, footing the bill for government. On day one, the new administration scrubbed references to climate change from the EPA website (echoing similar actions by Wisconsin’s Department of Natural Resources and Public Service Commission). Expect more of the same.

Second, we must continue to be vigilant in the face of Trump’s tendency, first as a candidate and now as president, to engage in bombast and exaggeration. It is our duty to expose unprovable, and outright false, claims.

Third, we must guard against politicians’ unwillingness to subject their actions to media scrutiny. It is our job to disclose what the administration is doing, even in the face of efforts to bypass the traditional White House press corps.

As law professors RonNell Andersen Jones and Sonja R. West recently wrote in The New York Times, while the First Amendment prohibits government censorship and offers protection against lawsuits, journalists have few constitutional rights to government documents and sources, or from being maligned by people in power. Trump, they noted, appears set on blowing up the “mutually dependent” relationships the White House press corps has had with presidential administrations from both parties.

“This is why we should be alarmed when Mr. Trump, defying tradition, vilifies media institutions, attacks reporters by name and refuses to take questions from those whose coverage he dislikes,” they wrote.

It’s not just about the media. It’s about your right to know. To quote Jones and West, “Like so much of our democracy, the freedom of the press is only as strong as we, the public, demand it to be.”

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a 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 Wednesday, 01 February 2017 09:55
 

December: Release John Doe II case records now

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One of the most important court decisions in Wisconsin political history was argued largely in secret. The arguments were made in briefs that were heavily redacted or entirely shielded from public view. The evidence was hidden. Most of the litigants were anonymous.

The level of secrecy “is something I haven’t ever heard of happening in Wisconsin,” says David Schultz, a retired University of Wisconsin law professor who has watched the state Supreme Court for 40 years.

Unless the high court decides to unseal its files, the public will remain ignorant of the full facts and arguments it considered when it shut down the John Doe II investigation centered on Gov. Scott Walker’s campaign — known in court documents as “Unnamed Movant No. 1.”

Leaked and inadvertently unsealed records revealed that Walker raised large, undisclosed donations for ostensibly independent political groups, which in turn ran “issue ads” prior to the 2011 and 2012 Senate recall elections and the 2012 gubernatorial recall. These are unregulated, thinly veiled communications often intended to influence elections without expressly advocating for or against any candidate.

When two lawsuits aimed at killing the probe and a third filed by prosecutor Francis Schmitz attempting to save it made their way to the Supreme Court, the majority of justices agreed that most of the issues should be argued in secret to prevent “testimony which may be mistaken or untrue from becoming public.”

In July 2015, by a 4-2 vote, the court ended the probe, declaring that the conduct under investigation was not illegal and ordering that the evidence be returned to the subjects or destroyed. The court later amended its order to direct that the remaining evidence be turned over to the court. No one was ever charged.

But questions remain: What exactly did Walker do behind the scenes to fight the recalls? What evidence did prosecutors offer that two of the justices had conflicts of interest? Did prosecutors abuse their discretion in investigating activity that the subjects argued was protected political speech under the First Amendment?

And, importantly, did the court follow the law and precedent when it decided to shut down the investigation? Or did it, as Justice Shirley Abrahamson charged in her dissent, engage in a “blatant attempt to reach its desired result by whatever means necessary”?

In October, two nonprofit and nonpartisan groups — the Wisconsin Freedom of Information Council and the Wisconsin Center for Investigative Journalism — filed a public records request with Diane Fremgen, the clerk of the Supreme Court, asking that the case file be opened.

Fremgen denied the request, saying the court had directed her to maintain “certain filings” in the case under seal — even essential records such as motions and briefs filed with the court.

There are, we understand, concerns about releasing some exhibits attached to the court filings, on grounds that this evidence was illegally seized by prosecutors and should remain sealed. But Fremgen decided not to split those hairs, denying the entire request.

Abrahamson, for her part, has argued the case should be open, writing, “The public has a constitutional, statutory and common law right of access to judicial proceedings and judicial records.”

We agree.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Dee J. Hall is the group’s secretary and managing editor of the Wisconsin Center for Investigative Journalism.

Last Updated on Monday, 05 December 2016 08:41
 

January: Public’s trust was abused over police videos

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On Sunday, August 14, after a night of unrest prompted by the fatal police shooting of a black man, Milwaukee Police Chief Ed Flynn said his review of body camera video of the incident proved the officer had acted appropriately.

“The individual did turn toward the officer with a firearm in his hand,” Flynn stated, later saying the man, 23-year-old Sylville Smith, “was raising up with” the gun.

Milwaukee Mayor Tom Barrett said a still photo he was shown from the video “demonstrates, without question, that (Smith) had a gun in his hand.” In fact, Barrett declared , the officer “ordered that individual to drop his gun, the individual did not drop his gun.”

This purportedly exculpatory video itself was not promptly released, despite requests from Barrett and Wisconsin Gov. Scott Walker that this occur. It still has not been released. But we know now that public officials did not give an accurate account of what it shows.

We know that because, in mid-December, Milwaukee County District Attorney John Chisholm filed criminal charges against Dominique Heaggan-Brown, the former Milwaukee police officer who killed Smith. (Heaggan-Brown was fired over an alleged sexual assault shortly after the shooting.)

According to the criminal complaint charging the officer with first-degree reckless homicide, Smith held a gun as the officer fired his first shot. Smith, struck in the arm, pitched the gun over a fence and fell to the ground. The officer then fired a second, fatal shot to Smith’s chest.

“A review of the body camera video from (both officers at the scene) confirms that at the time of the second shot, Smith was unarmed and had his hands near his head,” the complaint says.

A 2014 state law governing investigations of police shootings requires that gathered materials be released if a decision is made not to file charges. The law is otherwise silent as to whether and when these materials are released.

Barrett has renewed his call for release, while Flynn has weighed in against this. Chisholm told me his office will not release this evidence prior to its use in a criminal proceeding.

In this case, I believe, it is already too late to restore confidence in the integrity of the process. Flynn’s representations about the video were at best misleading, and Barrett’s statements suggest he was misled, as was the public.

The whole point of outfitting police with cameras, at taxpayer expense, is to ensure truthfulness and enhance accountability. That did not happen here. And many more months may pass before the video is released.

Other jurisdictions have more enlightened policies. In Chicago, for instance, videos of police shootings are normallyreleased within 60 days, and posted online.

In the legislative session that begins in January, there will likely be renewed efforts to establish consistent state policies regarding police body cameras; a bill to do so in the last session went nowhere.

Now is the time, in the wake of this regrettable case, for the citizens of Wisconsin to insist that the video records they are paying for are not kept secret, or used to mislead them.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Bill Lueders is the group’s president.

Last Updated on Wednesday, 28 December 2016 13:08
 

November: Public must see police shooting videos

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Since the beginning of 2015, police in Wisconsin have killed 30 people, according to one media database. In Madison, Neenah, Eau Claire, Wausau, East Troy, Wauwatosa and Milwaukee, officers have used their power to its ultimate extent.

These officer-involved killings test the relationships between police officers and the public they are sworn to protect and serve. The whole community has an interest in knowing whether the police have acted appropriately, or in an unprofessional or biased manner.

One essential tool for making these judgments is the video taken by police vehicles and body cameras. But in Wisconsin, we have seen cases in which these public records are being withheld from public view, for months.

In 2014, Wisconsin enacted a law requiring independent investigations of officer-involved deaths, by the state Department of Justice or others. Nothing in the law prohibits the release of video soon after an incident. But Wisconsin officials typically refuse to release video unless and until a county district attorney decides not to bring charges against the officers involved.

That’s the status of video from the June killing of Jay Anderson in Wauwatosa and the August killing of Sylville Smith in Milwaukee. That’s too long. Once the key witnesses have been interviewed, the benefits of releasing all the video outweigh other considerations.

After the Smith shooting, Milwaukee’s mayor and police chief publicly commented on what the videos and still photos showed, while the public was not allowed to see for itself. That’s wrong.

It’s also wrong to allow the officers involved to view the video before they are interviewed, as is currently allowed. In July, the Milwaukee Fire and Police Commission approved a new policy giving the police chief or an outside investigator the discretion to let officers review video records.

The American Civil Liberties Union of Wisconsin has pushed for prompter release of these records. We do not buy the arguments that are made in support of keeping them under wraps—for instance, that it may make it harder for police defendants to find an unbiased jury. The extra effort to do so is not too great a burden for prosecutors, and a main reason for making police videos in the first place is to provide an additional layer of public accountability.

The Sylville Smith killing was followed by civil unrest in Milwaukee’s Sherman Park neighborhood. Given the fact that tension had been developing all summer in Sherman Park, we can’t be sure that the release of the Smith video would have prevented violence, but it probably would have fostered trust between the community and police. Withholding the video allowed speculation to take hold.

If police and civic leaders ask for trust in the aftermath of officer-involved killings, they must promptly let the public see the materials we need to verify their accounts.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Chris Ahmuty is executive director of the ACLU of Wisconsin.

Last Updated on Thursday, 03 November 2016 11:57
 


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