Wisconsin Freedom of Information Council

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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

June: Voucher schools should be more open

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Sarah Karon

Back in 1990, when Milwaukee launched the nation’s first publicly funded voucher program, participating schools could enroll no more than 49 percent voucher students. These schools were considered private, because the majority of their students paid private tuition.

Fast-forward to 2013.

Now, more than half of Milwaukee’s 110 voucher schools have at least 95 percent of students on publicly funded vouchers. In one-fifth of these schools, every student receives a voucher.

Yet because voucher schools are still classified as “private,” they can — and do — ignore Wisconsin’s open records and meetings laws. It’s a double standard that undermines transparency and shields information from parents and the public.

Let’s say you want to enroll your child in St. Anthony School, which receives more taxpayer dollars than any other school in Milwaukee’s voucher program.

As a parent, you may want to know which textbooks the school uses, how many teachers are licensed, what topics are covered in curricula, and the school’s graduation, dropout, suspension and expulsion rates. You might want to review agendas and minutes from governance meetings, or see a breakdown of families’ income distribution.

Only you can’t, unless the school decides to share that information. Voucher schools aren’t required to report any of this data to the state, or otherwise make it publicly available.

Shielding this information has had serious consequences. Last June, St. John Fisher Academy, a school in the Racine voucher program, suddenly closed, leaving parents and teachers scrambling. Administrators blamed the closure on “lack of funds.” The school, it turns out, failed to pay teachers for months and lost nearly two-thirds of its students in its final year.

All but one of the 52 students attending St. John Fisher received a publicly funded voucher. Yet because the school was “private,” it wasn’t required to abide by the same openness laws as public schools. Without accountability and oversight, educators, parents and kids suffer.

The state has made some moves toward transparency. Beginning in 2010, voucher schools were required to report students’ test scores to the Department of Public Instruction (DPI). The state agency also collects voucher schools’ financial information, racial demographics and school policies; members of the public can obtain these by submitting an open records request.

Whether there will be further steps toward accountability remains to be seen.

Early drafts of Gov. Scott Walker’s proposal to expand the voucher program to nine school districts included a statewide accountability system, the Milwaukee Journal Sentinel reported. (Ironically, the newspaper discovered this via records requested under the state’s open records law.) The system would have held all public schools and publicly funded voucher schools to the same standards.

But legislators scrapped these plans. Instead, Walker’s 2013-15 budget vaguely references the need for voucher schools to participate in a “statewide student information system.” DPI spokesman Patrick Gasper confirms this would make voucher schools report more data to the state, but says “the specifics of those requirements are not yet known.”

Even our education officials have been left in the dark.

Creating transparency in our schools is in the best interest of Wisconsin families, educators and policy makers. Parents deserve to know what’s going on in kids’ schools. And taxpayers deserve to know how their money is being spent.

Wisconsin prides itself on government transparency, through its far-reaching openness laws. The state’s publicly funded schools — be they public or “private” — should not be exempt from that tradition.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council, a non-profit group dedicated to open government. Sarah Karon is communications director of the American Civil Liberties Union of Wisconsin.


April: Child-care, elder records easier to get

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Journalists and others often have cause to complain about the difficulties of prying public information from public officials. But sometimes there are reasons for optimism.

Wisconsin has one of the nation’s best systems for accessing court records, through Wisconsin Circuit Court Access. The system has saved county clerks of court countless hours providing this information.

Many local governments put property-tax records online, so owners can check assessments for fairness. Gov. Scott Walker has pledged to launch “Open Book,” a new program to provide detailed information on state spending.

And two recent developments have eased access to state records on child care and senior care facilities — institutions serving highly vulnerable populations.

In January, the Wisconsin Department of Health Services began posting online its inspections of nursing homes, assisted living facilities, in-home caregivers and other health-care providers.

Searchable by name, location and type of facility, the department’s database provides reports from state and federal surveys. These include detailed descriptions of violations, which can range from a dirty seat cushion to failing to protect resident confidentiality.

The database includes any inspections conducted since July 2012. Older records are available on request from the Department of Health Services, in the Division of Quality Assurance, with a 25-cent per-page copying cost. For more information, see http://tinyurl.com/bsdnpvk.

It’s ironic that these records are now so easy to obtain, given that the state has taken steps to limit their use. A law passed in 2011 forbid these records from being introduced as evidence in any civil or criminal proceeding. But anyone can get them online.

The second recent positive development increased transparency in the child care industry.

Last year, the state Department of Children and Families expanded its YoungStar database. It now includes information on the fines levied against child care centers.

The database is easily searched by location, name and type of care. Individual profiles for each center include a YoungStar rating, as well as a list of dated violations and fines with descriptions and plans for correction.

As the Wisconsin State Journal reported, fines are listed for the past two years, with previous fines available upon request.

Anneliese Sheahan, a child care provider in Mosinee and president of a union representing providers, urges users to keep the information available on this website in perspective. Even though a violation is posted, she says, the provider may disagree with it or be appealing it.

But overall, Sheahan is supportive of the move because it gives parents more information about why a provider received a violation, allowing them to distinguish between smaller mistakes and more serious infractions.

For example, she says, one provider could be fined for operating over capacity simply because of a late pick-up by a parent, while another could receive the same type of fine for regularly caring for too many kids.

“There’s a huge difference and parents need to understand that,” Sheahan says.

Information is power. These websites empower Wisconsin citizens to hold accountable the institutions they trust to care for children and the elderly.

And they offer hope for even greater transparency in the future.

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. Rory Linnane is a UW-Madison student and an intern at the Wisconsin Center for Investigative Journalism.

May: Cops wrong to shield driver data

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Dee Hall

Bob Dreps, a veteran media law attorney, says law enforcement agencies across Wisconsin are “overreacting” to an Illinois federal court ruling by purging the names of drivers from public records.

Police in Wisconsin have begun withholding the names of drivers in police reports in response to a 2012 case involving the village of Palatine, Ill. A lawsuit there  alleged that police violated drivers’ privacy rights by displaying names, addresses and other personal information on parking tickets left on windshields.

“The ability to have oversight over law enforcement is pretty minimal if you can’t find out who’s involved (in an incident),” Dreps says. “Without names, there’s no accountability.”

Dreps warns that this could lead to bizarre situations in which names of some alleged perpetrators, crime victims and witnesses are kept secret while others — those without driver’s licenses — appear in incident reports.

The U.S. Court of Appeals for the 7th Circuit, which includes Wisconsin, reversed the dismissal of a lawsuit alleging that the manner in which the citations were issued by Palatine police violated the federal Driver’s Privacy Protection Act.

The federal law lets aggrieved parties go back four years and carries a mandatory $2,500 per incident fine. Palatine, which was sued by a class of drivers who received a total of 32,000 tickets, faces a potential $80 million fine. It has appealed to the U.S. Supreme Court.

Dreps says the ruling is not binding in Wisconsin, and does not change the state’s Open Records Law. But some law enforcement agencies here are nonetheless blacking out information that was once routinely available. (Ironically, law enforcement agencies in Illinois do not seem to be doing the same.)

According to news reports, the Marathon County Sheriff’s Office, Wausau Police Department and more than a dozen police agencies in suburban Milwaukee now withhold personal information obtained through state Department of Motor Vehicle records — including the identities of people arrested.

Dreps says the federal law was aimed at preventing states from selling their drivers’ license database to vendors, not keeping the public from knowing the names of people in police reports.

“The case doesn’t have anything to do with public records,” Dreps says. “It has to do with parking tickets left on windshields.”

Dreps is representing the New Richmond News, which is challenging the decision of local police to remove names from two accident reports and a report involving the theft of gas from a Kwik Trip.

In a letter to the paper’s publisher, Steve Dzubay, New Richmond Police Chief Mark Samelstad said he wouldn’t put the city at risk “by releasing certain information to the public that has been restricted by state or federal courts.”

State Attorney General J.B. Van Hollen issued an opinion in 2008 that Wisconsin law enforcement agencies do not violate the Driver’s Privacy Protection Act when they release records that contain drivers’ personal identification. But some agencies are no longer heeding that advice, and Van Hollen’s office now says it is waiting for the courts to clarify the Palatine decision.

On April 23, the lawsuit filed by Dreps on behalf of the New Richmond News was moved from St. Croix County Circuit Court to U.S. District Court in Madison.

Perhaps a federal judge or the U.S. Supreme Court will clear things up and allow police in Wisconsin to keep their black marking pens where they belong — in the drawer.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council, a non-profit group dedicated to open government. Dee J. Hall is a reporter for the Wisconsin State Journal and secretary of the Council.


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.


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