Wisconsin Freedom of Information Council

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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.


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.



August: Don’t delay on records requests

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Bill Lueders

On July 30, the Milwaukee Journal Sentinel reported on newly released emails between Scott Walker’s campaign staff and county aides in 2010, back when the future governor was Milwaukee county executive.

One email was from Cindy Archer, then a top county aide, to Walker and his campaign staff, advising that “we may be responding too quickly” to open records requests regarding a county parking structure collapse that killed a 15-year-old boy.

The requests were from the state Democratic Party and the campaign of Walker’s GOP primary opponent, which presumably wanted to use the tragedy to impugn Walker. That’s a pretty low motivation — Walker, in a draft statement, aptly called it “disgusting” — but the state’s Open Records Law does not allow a requester’s motives to be taken into account.

Archer, in one email, relayed that Milwaukee Mayor Tom Barrett, Walker’s Democratic rival for governor, was taking three months to even acknowledge the receipt of records requests. In another, she said her sense from Walker’s campaign manager “is that we should be operating one step above ignoring them.”

Has it come to this? That public officials in Wisconsin are in a kind of backwards race with each other to see who can take the longest to answer records requests?

That may be. Delays are a growing problem for records requesters in Wisconsin. The Wisconsin Freedom of Information Council recently updated its online list of “Open Government Problem Areas” and put “Long waits” at the top.

Some records custodians take much longer than others, and may treat requesters differently. Delays may be indicative of disfavor, which is disappointing.

The national People for the Ethical Treatment of Animals says the University of Wisconsin-Madison took until late July to complete a records request PETA made last December and paid for in February. The university is seeking a blanket exemption from the law for certain research records.

Earlier this year, I reported that the state Department of Administration took 352 days to satisfy one records request — coincidentally concerning Archer, who became a top DOA official until abruptly resigning in September 2011, shortly before her Madison home was raided by the FBI (long story).

An analysis showed that DOA, on average, took 24 days to answer the more than 200 requests it received in the first half of 2012. Requests from businesses were answered in an average of 17 days; those from media took an average of 56 days.

Political and advocacy groups also experienced longer waits, the analysis found.

Wisconsin’s Open Records Law states that custodians should handle records requests “as soon as practicable and without delay.” The state Attorney General’s Office, which has statutory authority to interpret and enforce the law, advises that most simple requests should receive a response within ten working days.

But beyond that, the office has not wanted to press the issue of how long is too long. In 2009, it told a requester that it was unable to say whether the two-and-a-half months he had waited for records he paid $700 for was “unreasonable,” since the request may have been time-consuming.

Pretend to read my lips: Two and a half months is too long.

Yes, responding to records requests takes staff resources and time. But the law specifically instructs government officials in Wisconsin that providing access to records “is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees.”

In other words, “whenever we get around to it” is not good enough.

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, 06 August 2013 09:50

September: Pull back veil on budget tweakers

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Mark Pitsch

State Rep. John Nygren and Sen. Alberta Darling might be the masterminds behind plans to legalize bounty hunters in Wisconsin, boot an investigative journalism center from the UW-Madison campus and add a credit for private school tuition to the state’s tax code.

After all, the Republican co-chairs of the Legislature’s Joint Finance Committee are the official sponsors of Motion 999, added to the biennial state budget in the early morning hours of June 5. The motion included those measures and nearly two dozen more, all approved with minimal debate.

Or Nygren and Darling may just have been carrying water for other legislative Republicans. We may never know.

That’s because the legislative process allows these measures to be added without being tied to any particular source.

Gov. Scott Walker vetoed the budget amendments regarding bounty hunters and the investigative journalism center, but left intact the new tuition tax credit of up to $10,000 for each private school student.

Doesn’t the public have a right to know who came up with these ideas? This would let voters hold their elected officials accountable at the ballot box and look for potential conflicts, like special interest cash flowing to a given lawmaker.

“It’s a huge problem in every respect,” said Jay Heck, executive director of Common Cause in Wisconsin. “It’s a terrible way to legislate and a terrible way to make decisions about taxpayer dollars.”

But that’s how the Joint Finance Committee has worked for at least two decades, under both Democrats and Republicans. Heck and others say the practice has gotten worse in recent years, as legislative power has been concentrated and politics become more polarized.

Unlike most bills, the $70 billion state budget is typically changed only by the small group of lawmakers who serve on the Joint Finance Committee. Successful floor amendments are possible, but rare. Usually, other lawmakers must go through a committee member, and those changes often get pulled together in an amendment like Motion 999. 

“This 999 motion is something we found out about at 1:30 in the morning and we had to vote on it at 5:30 or something,” said Sen. Glenn Grothman, R-West Bend, a member of the finance committee.

Grothman groused that he wasn’t involved in the discussions that led to Motion 999. If he were, he would have fought for an even greater private school tuition tax break, which he thinks was inspired by earlier legislation he drafted.

“It’s a pretty closed process,” Todd Berry, president of the Wisconsin Taxpayers Alliance, said of the way the finance committee writes the budget. “Most other states don’t do it the way we do it.”

Neither Darling, of River Falls, nor Nygren, of Marinette, returned calls to discuss the process. But committee member Sen. Sheila Harsdorf, R-River Falls, defended it, somewhat. She said most of budget provisions can be traced to a previously introduced bill or policy statements made by a lawmaker.

Moreover, the final votes on the budget are a matter of public record.

“At the point you vote for it or against it you’re taking ownership,” Harsdorf said. “It’s not as important to me who introduced it as to whether I support it or oppose.”

But Harsdorf agrees it’s sometimes “hard to trace” where a particular budget amendment added by the Joint Finance Committee leaders comes from.

“Sometimes we don’t know, either,” she said.

And that should bother everyone — from open government advocates to the lawmakers themselves.

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

Last Updated on Thursday, 29 August 2013 13:42

July: Don’t exempt UW-Madison from records law

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Allen Ruff

The University of Wisconsin-Madison has requested that the state Legislature grant it an exemption from Wisconsin's Open Records Law.

The proposed legislation, if passed, would limit public access to university records and diminish independent scrutiny of the state's flagship university.

In pursuit of this exemption, UW-Madison officials have circulated proposed language, initially to a list of Republican-only legislators. The two-page memo contained a range of arguments for granting increased protection of “intellectual property,” primarily the growing proportion of on-campus research and development.

The proposed legislation, which the UW initially tried to get put into the state budget bill, is overly broad. If passed, it would inevitably lead to abuse.

It would allow the withholding of information “produced or collected by or for faculty or staff of public institutions of higher learning in the conduct of or as a result of study or research on commercial, scientific or technical subjects,” until it has been publicly released, published or patented.

This exemption would pertain whether the research was “sponsored by the institution alone or in conjunction with a governmental body or private concern.”

The UW-Madison sponsors argue that this change is needed to deter the theft of valuable research before it can be patented. Their memo to lawmakers warned darkly of “the possibility that public records laws can be used as a tool for competing researchers to gain premature access to the ideas of others places the University at a competitive disadvantage with respect to recruiting and retaining high caliber researchers.”

In other words, a research funder might lose anticipated returns on its investment because a competitor gained access to key information through an open records request. If so, that funder might take its money elsewhere — to a private institution unconcerned with public access. Researchers would follow suit, to the detriment of the UW and state.

Wishing to curtail the number of records requests — especially by those raising ethical concerns about specific “public-private partnerships” — the proposal’s sponsors also argue that current procedures are too cumbersome and expensive.

But that argument can be made for any use of the records law. So can the argument that the public is entitled to know what its publicly funded institutions are doing.

Not long ago, I teamed with journalist Steve Horn to examine the ethically questionable relationship between UW-Madison and the dictatorial regime in Kazakhstan. We obtained records that could easily have been denied us if the current proposed changes existed.

Some of what we received, including contracts with the Kazakh regime, were vetted by the university’s legal office. Some of the material was redacted to protect privacy and security concerns.

Clearly, the existing procedures and safeguards are adequate. The UW office in charge of fulfilling requests never has, and is not about to, give away any scientific or trade secrets.

Further restrictions on access to records at the UW-Madison will not serve the public interest.

If the details of various “public-private partnership” deals can be withheld by some “authority” based on a subjective and over-reaching interpretation of the law, then what becomes of legitimate inquiry regarding the ethics and propriety of such ventures?

It’s a policy that runs roughshod over the university’s proclaimed commitment to openness, transparency and citizen access.

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. Allen Ruff is a Madison-based U.S. historian and researcher.

Last Updated on Sunday, 30 June 2013 11:18

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