Wisconsin Freedom of Information Council

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Don’t restrict access to open records

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From the Chippewa Herald, an editorial on the proposed bill to allow records custodians to charge for the cost of reviewing and redacting records.


February: Legislature oversteps with new rules

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Let’s start with a stipulation: Not all of the inappropriate behavior that takes place in the Wisconsin state Legislature is committed by lawmakers. Some spectators, especially in the last two years, have also shown poor manners and bad form.

People who shout “Liar!” from the gallery as the governor gives a State of the State address are being not just disrespectful but disruptive, and deserve to be kicked out.

But new rules recently passed by the state Assembly and state Senate go beyond preserving decorum and ensuring order. They impede the ability of citizens to participate in their democracy and offer fresh proof, if any were needed, that the Legislature feels no need to follow the rules it has put in place for others.

A provision in the Open Meetings Law passed by the Legislature in 1977 directs all state and local governmental bodies in Wisconsin to “make a reasonable effort to accommodate any person desiring to record, film or photograph the meeting,” so long as this does not cause disruption.

Last month, after closed-door meetings involving leaders of both parties, the Assembly and Senate unveiled new rules of conduct, which majority Republicans passed over nearly unanimous Democratic opposition. The Assembly rules formalized what had been posted guidelines, barring visitors from using “audio or video devices to record, photograph, film, videotape, or in any way depict the proceedings on or about the Assembly floor.”

The Senate also passed new rules for spectators in the gallery and meeting rooms.

Taking a photo from the gallery to document the grade school field trip? Forbidden. Unobtrusively recording a legislative session of particular interest? Yer outta here! Taking notes on a laptop? What do you think this is, a classroom?

The rules, which also include a ban on reading newspapers “or other printed materials,” eating food, displaying signs or wearing hats, are so sweeping that legislative spokespeople are stressing that exceptions can be made and discretion will be exercised.

No, a Muslim woman with a veil or Sikh man wearing a turban are not necessarily going to be tossed out on their well-covered ears. A mother feeding Cheerios to her hungry two-year-old may be able to avoid the long arm of the law. An old man with a hearing aid probably won’t be asked to turn that electronic device off.

But a citizen who turns on a tape recorder or video camera to make a record of what his elected representatives are doing — rights the Legislature says citizens may exercise before every other public body in the state — is clearly in violation.

This isn’t the first time the Legislature has set itself apart from the rules it has created for others.

A special exemption lets members of the same political party meet in secret, even if they constitute a majority and can determine legislative outcomes. Lawmakers have also exempted themselves from the records retention rules in place for all other governmental officials. Village department heads must retain their official correspondence for years, but lawmakers can legally delete emails and shred letters whenever they feel like it.

Such exclusions breed distrust and erode confidence in government, just as bans on taking photos or using recording devices convey fear and insecurity.

And what makes it especially ironic is that, for the most part, these devices would capture lawmakers behaving professionally and honorably, as is usually the case — at least when they are meeting in public.

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, a reporter with the Wisconsin Center for Investigative Journalism, is the group’s president.



December: City leads the way on openness

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Steve Lovejoy

Recently the City of Burlington made some changes to its website, adding a feature it calls a “performance dashboard.”

The online tool gives city residents a better look – much of it in real time – about what their government is doing. As the site explains, “Users can review monthly and yearly revenue, expenditures, per capita spending and performance measurements across several departments.”

In unveiling the site, Burlington Mayor Robert Miller said, “It has been one of my goals that we make city government as transparent as possible.”

That’s the kind of thing that makes advocates of open government want to stand up and clap.

City and state officials and politicians sometimes take the jaundiced view that what they do is their business – and resist sharing the information that forms the path for their actions with citizens and taxpayers.

But it’s not “their” business, it’s the public’s business. The public has every right – within established guidelines and reason – to know the details of government operations. Clearly within this realm is information about how much government costs, how well its decisions stack up against other communities, and what alternatives might be available.

Transparency in government is more than a buzzword, it’s an effective way of communicating with constituents and taxpayers and building trust. Responsible government officials want to make sure their decisions can be fully scrutinized and the people making them can be held accountable.

Too often citizens and media representatives around the state have to leap over hurdles to get information on government actions that should be routinely made available for inspection. That means filing formal information requests and sometimes having to go to court before the requested records are finally made public.

Going to court is never a preferred option. It’s a cumbersome and expensive process that could often be sidestepped if government officials would simply recognize that Wisconsin’s Open Records and Open Meetings laws require that government should operate as openly as possible.

In some cases, public officials and politicians block access to information knowing that by the time the information finally comes out it will be long past the time it is relevant to the issue that made its public release important.

That’s hardly good governance.

Mayor Miller and the city of Burlington’s online initiative stand in stark contrast to those efforts to keep the public in the dark. The city’s new performance dashboard lets Burlington residents (and anyone else) get monthly updates of the city’s general fund revenues and expenditures, for both the current and prior year. Taxpayers can compare the cost of city operations to those of other communities and find details on operation spending.

According to Miller, city department heads and the city council use these same online tools to gauge their spending, develop budgets, monitor performance and make policy choices.

Future plans call for the city of Burlington to stream city council meetings on its website live – and create archives of previous meetings.

All these things should provide Burlington residents with a better window into what their government is doing, the choices and reasons for policies and a more open community discussion of the path the city should take.

That’s opening the window for better government and more community understanding. And it’s something that communities around the state may want to emulate.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council, a non-profit group dedicated to open government. Steve Lovejoy, a council member, is editor emeritus at the Racine Journal Times.


January: Keep DNR enforcement sessions open

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Stung by controversy last year over its allegedly light treatment of an environmental rule breaker, the state Department of Natural Resources is rewriting its enforcement procedures. Unfortunately, a draft of its plan calls for making the process less transparent.

When dealing with polluters, the DNR’s policy is to apply progressively stricter actions until violations are addressed. Most violations are corrected to the agency’s satisfaction early on, through conversation or correspondence.

If a more formal response is needed, the DNR issues a notice of violation to the alleged polluter, identifying the problem and potential consequences. This is typically followed by an enforcement conference between representatives of the DNR and the alleged polluter.

The purpose of these conferences is to solicit information about the alleged violation, indicate what steps are being taken, resolve legal or technical questions, and reach agreement on a solution.

Until it issued the recent draft procedures, the DNR has let neighbors, other citizens and the media attend enforcement conferences, even though this is not typically required under the state’s Open Meetings Law. Last March, for example, state media covered an enforcement conference with WE Energies regarding a bluff collapse in Oak Creek.

The benefits of holding these conferences openly are manifold. Doing so lets concerned neighbors and other members of the public obtain up-to-date information while giving them an opportunity to ask questions of the alleged polluter and DNR.

Public attendance at these conferences also helps ensure the pollution problem is addressed. The polluter may favor the cheapest, quickest and least effective solution. The DNR may be susceptible to political pressures. Having others in the room may prevent violations from simply being negotiated away.

The DNR’s draft enforcement policy states that closing enforcement conferences to all except representatives of the DNR and the alleged polluter will “ensure a productive, candid discussion.”

Yet the DNR is a law enforcement agency—citizens aren’t. If the process plays out in private, the public may wonder whether the DNR is cutting deals with polluters and sweeping problems under the rug. At the very least, closing these conferences to outsiders erodes public trust.

The DNR has said that concerned citizens can still get information about the enforcement conference afterward, from DNR staff. But this information will likely not be as timely or complete.

It’s possible that closed conferences may lead to quicker resolutions, as the DNR suggests. But if a fix is inadequate, it hardly matters that it is quick.

As an attorney who has represented citizens concerned about environmental issues, I have seen firsthand the value of conducting these conferences openly. These are generally not high-interest events; attendance is usually sparse and unobtrusive. But openness does help reassure the public that the process is working correctly, which is especially important for chronic polluters and egregious violations.

Environmental laws don’t exist for their own sake — they are meant to address real-world problems like polluted air that causes asthma attacks, water that is unsafe to drink, and degraded recreational resources. If an environmental violation occurs, the public is entitled to know about it and to see for itself whether and how the polluters and officials charged with enforcing the law respond.

The DNR should reconsider its draft policy and keep the doors open at enforcement conferences. If the agency really feels that some conferences need to be closed, it should establish strict criteria for doing so, making clear that the default policy is maximum openness.

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, an attorney at McGillivray Westerberg & Bender LLC in Madison, is the group’s vice president.


November: Public’s business shouldn’t be 'private'

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Dee Hall

Wisconsin’s Open Records Law asserts the public’s right to the “greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”

But the law’s reach has been tested in recent years by electronic communications that are easily sent — and just as easily deleted — from officials’ email and cellphone accounts.

In May, the Wisconsin State Journal reported that Madison Common Council members were sending email and text messages during council meetings, holding essentially private discussions on matters that were supposed to be debated in public.

State Journal reporter Dean Mosiman obtained 7,656 emails and hundreds of texts exchanged during council meetings. He found that council members engaged in back-channel chatter with colleagues, lobbyists, staff and constituents on issues ranging from the silly to the substantive, including multi-million dollar subsidies for a proposed redevelopment project.

“Whether or not such communications violate the state's open meetings law, they certainly run contrary to the notion that substantive discussions of public issues should occur in the open,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “For members to confer and even strategize privately erodes trust in the process.”

The Wisconsin Supreme Court in 2010 ruled that emails sent and received by teachers through the Wisconsin Rapids School District’s email system were public records, but that purely personal communications could be withheld.

Attorney General J.B. Van Hollen issued a memorandum seeking to clarify the decision.

“If there is any aspect of the email that may shed light on governmental functions and responsibilities, “ Van Hollen wrote, “the relevant content must be released as any other record would be released under the Public Records Law.”

On Oct. 1, the Center for Media and Democracy and Common Cause in Wisconsin sued a handful of Republican lawmakers, saying they failed to comply with a public-records request to turn over emails sent from their personal accounts. The groups accuse the lawmakers of seeking to shield their correspondence with the controversial American Legislative Exchange Council (ALEC), a business-funded group.

The case was settled out of court, with the defendants acknowledging that official emails on personal accounts are subject to the Open Records Law and agreeing to provide these records.

More recently, Nino Amato, executive director of the Coalition of Wisconsin Aging Groups, alleged that officials from the state Department of Health Services used private email accounts to discuss state business regarding contracts with CWAG. Amato said he obtained the emails by filing a formal complaint with the state and demanding them under a legal discovery process.

In deposition testimony, one of the officials involved admitted using her private email account because “I was hoping to keep this private.”

In its public records compliance guide, Van Hollen’s office has advised that officials cannot evade the open-records law by communicating on private email accounts. “Email conducting government business sent or received on  the personal email account of an authority’s officer or employee also constitutes a (public) record,” the guide states.

The Wisconsin Freedom of Information Council believes the state should consider taking several additional steps to address the problems posed by new technology. Among them:

  • Bar members of deliberative bodies from engaging in electronic chatter — emails, text messages and instant messages — on issues under discussion.
  • Require that public officials use only their official government accounts, whenever possible, to conduct government business.
  • Establish consistent rules for the retention and retrieval of electronic communications involving government business.

The deliberations that go into making public policy should be conducted with as much transparency as possible. We all have a stake in ensuring that our modern tools do not undermine Wisconsin’s long-held commitment to open government.

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, a reporter with the Wisconsin State Journal, is the group's secretary.


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