Wisconsin Freedom of Information Council

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Seeking Distinguished Wisconsin Watchdog Award nominations

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Nominations are being sought for the 2014 Distinguished Wisconsin Watchdog Award, presented annually to recognize an individual's extraordinary contributions to open government or investigative journalism in Wisconsin.

Dave Zweifel, editor emeritus of The Capital Times and a founder of the Wisconsin Freedom of Information Council, was named the inaugural winner in 2011. The late Dick Wheeler, founder of the Wheeler Report and a tireless advocate for public access to the workings of state government, was honored in 2012. And in 2013, U.S. District Judge Lynn Adelman, the chief author of Wisconsin's Open Records Law and a strong advocate of the Open Meetings Law, received the award.

The award is presented jointly by the Wisconsin Center for Investigative Journalism, Wisconsin Freedom of Information Council and Madison Pro Chapter of the Society of Professional Journalists.

Letters of nomination are accepted from journalists, news organizations and other individuals and organizations involved in open government and investigative journalism issues.

They should be sent by Jan. 22 to Andy Hall, the Center's executive director, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or WCIJ, 5006 Vilas Communication Hall, 821 University Ave., Madison, WI 53706.

The recipient will be selected by a panel of representatives from the Center, FOIC and SPJ, and will be honored at the Wisconsin Watchdog Awards reception and dinner, which is scheduled for April 23 at The Madison Club.

 

Statement on claims of legislative immunity to state Open Records Law

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A statement by the Wisconsin Freedom of Information Council regarding new claims that state lawmakers are effectively immune from the state's Open Records Law.

Statement on claims of legislative immunity to state Open Records Law

September 13, 2013

The Wisconsin Freedom of Information Council is shocked and saddened that a member of the state Legislature is, with the help of the state Attorney General’s Office, effectively claiming immunity from the state’s Open Records Law.

As reported by the Milwaukee Journal Sentinel, state Sen. Leah Vukmir, R-Wauwatosa, is advancing a legal argument that “would let all lawmakers ignore the Open Records Law.” The senator claims she cannot be sued while the Legislature is in session and that the session extends for a legislator’s entire term.

Our state's openness laws are fundamental to its ability to function as a democracy. Members of the Legislature, which passed these laws, ought to respect that. We call upon Sen. Vulmir to reconsider her position in light of the damage it could cause to the state.

So far as we can recall, no lawmaker has ever before tried to defeat the state's open records law by employing this ruse. We are deeply disappointed in both Sen. Vukmir and the Attorney General's Office, for the position it has taken, in its Sept. 11, 2013 court filing.

The state Attorney General’s Office has statutory authority for interpreting and enforcing the state’s openness laws. In the past, the office has initiated legal action against members of the Legislature.

In fact, lawmakers have been sued for violating the Open Records Law on a number of occasions, listed below. They sometimes lost, sometimes settled, and sometimes won. But in no prior instance did they claim to be above the law.

Wisconsin’s traditions of open government, including the ability to litigate cases of alleged noncompliance, have served the state well. That is not a tradition with which we should dispense.

Prior cases of Open Records lawsuits against state of Wisconsin lawmakers:

WI State Journal v. WI Joint Committee on Legislative Organization, Sen. Alan Lasse, Sen. Mary Panzer, Rep. John Gard, Dane County Case Number 2003CV003343. Brought by news media to obtain an investigative report into operations of the Joint Committee on Legislative organization. The report was released. See Journal Sentinel article.

State of WI v. David A Zien and Scott Gunderson, Dane County Case Number 2005CV002896. Brought by state Attorney General Peg Lautenschlager, alleging that the lawmakers were violating the law in not providing access to draft bills being shared with others. The case was dismissed by an appellate court because Lautenschlager was no longer in office; see AP article.

Wisconsin State v. Jeffrey Stone, Milwaukee County Case Number 2006CX000003. Brought by the Attorney General’s Office under Peg Lautenschlager. The case was ultimately dismissed when Lautenschlager’s successor, J.B. Van Hollen, decided not to pursue it. See AP article.

Democratic Party of WI v. State Sen. Dan Kapanke, Dane County Case Number 2009CV003928. This case settled when Sen. Kapanke produced the disputed records; he later promised to reimburse taxpayers for attorneys fees. See Milwaukee Journal Sentinel article.

Lakeland Times v. Mark Miller, Dane County Case Number 2010CV002011. Minocqua-based newspaper sued state Sen. Mark Miller, for not providing records in response to a request. The case was settled with Miller agreeing to pay fees and costs. See Lakeland Times article.

One Wisconsin Now v. Alberta Darling, Dane County Case Number 2011CV003529. Liberal advocacy group sued state Sen. Darling over her failure to release records. Case is settled out of court, with Darling agreeing to release the records and pay the group’s legal fees. See OWN statement.

Center for Media & Democracy v. five state lawmakers, Dane County Case Number 2012CV003922. The same group now trying to sue Sen. Vukmir sued five state representatives (Jeremy Thiesfeldt, Pat Strachota, Tyler August, Dan Knodl and Tom Larsen) for not providing records on request. The lawmakers settled, agreeing to release the records and pay costs and fees. See Milwaukee Journal Sentinel article.

John K Maciver Institute v. Jon Erpenbach, Grant County Case Number 2012CV000063. A conservative public policy group sued state Sen. Erpenbach, alleging he violated the open records law in redacting identifying information from requested records. A circuit court judge ruled in Erpenbach’s favor but the case is on appeal. See Wisconsin Institute for Law and Liberty article.

 

Statement on John Doe records

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A statement by the Wisconsin Freedom of Information Council:

As a rule, emails created by public officials that discuss government business and policies are the public's property and should be available to the public.

But hundreds, and possibly thousands, of emails created in secret by some of former Milwaukee County Executive Scott Walker's office staff are closed to public access. They were unearthed during a John Doe investigation of some of Walker's aides and a judge has ordered the material from the investigation not be released to the public.

The Wisconsin Freedom of Information Council urges the judge who presided over the John Doe investigation to reconsider his secrecy order and release the staff emails because the court proceedings revealed they discuss important county government policies and issues, including patient abuse at a county-run mental health facility and the death of a teenager killed when a concrete slab fell on him in a county parking facility.

The three-year John Doe investigation was recently completed. There's no longer a reason for information generated by public officials on the public’s dime that discusses the public's business to remain secret.

Additionally, the Council calls on the Milwaukee County Board and County Executive Chris Abele to reclaim ownership and take custody of these records, since they should have been turned over to Walker’s successor as state law requires when he left office. See State Statute 19.21(2). These records would then be subject to release under the Public Records Law.

This issue was the subject of an editorial this week in the Milwaukee Journal Sentinel. The Council hopes that others in the media will take similar stands.

 

The trend of redacting names from police reports

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From WLUK Fox 11 in Green Bay, a report on the trend of redacting information on police reports.

 

 

Hearing set on bill to create new tax on public records

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As we were expecting, a bill to allow custodians to impose a new fee for the time they spend reviewing and redacting records has been introduced in the current legislative session. It is AB 26. The text is here.

This bill has been scheduled for a hearing next Wednesday, Feb. 27, in Room 225 of the state Capitol, 10 a.m. It is one of two bills set for a hearing that day. Council members and supporters are encouraged to attend and testify.

The bill has nine listed cosponsors, eight Republicans and one Democrat. It has been referred to the Assembly Committee on Government Operations and State Licensing.

The Wisconsin Freedom of Information Council considers this bill a serious threat to the public's ability to obtain public information. It will allow custodians to make some records unaffordable to some requesters, and it will inevitably lead to abuse. The state of Wisconsin got along just fine for many years without these fees being imposed. Custodians only began charging them in the wake of a 2002 Wisconsin Supreme Court decision known as Osborn v. the Board of Regents. In that case, the Supreme Court included some imprecise language regarding the charges that custodians could impose. (See Osborn ruling, P. 3, last line of introduction, and P. 39.) Some custodians seized on this language to begin charging for the time they spent reviewing and redacting records.

When these fees were challenged in a case decided by the court last year, Milwaukee Journal Sentinel v. the City of Milwaukee, the Supreme Court unanimously ruled that the law did not allow for these costs to be passed on to requesters.

Having been caught imposing what were determined to be illegal fees, custodians have now enlisted the support of some state legislators to change the law to permit these charges.

We urge our members and supporters to stand in opposition to this troubling new tax on the public's right to know. The state's open records law states, in the second sentence of its Declaration of Policy (19.31, state Stats.), the following: "Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information."

The law clearly says that providing records is part of public officials' job. Why should public officials be allowed to charge extra for doing it?

 


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