Wisconsin Freedom of Information Council

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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?


Records law author Adelman to receive Wisconsin Watchdog Award

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U.S. District Judge Lynn Adelman, the chief author of Wisconsin’s Open Records Law and a strong advocate of the Open Meetings Law, has been named the 2013 recipient of the Distinguished Wisconsin Watchdog Award.

The award is a highlight of the third annual Wisconsin Watchdog Awards reception and dinner, presented jointly on Wednesday, April 24, by the Wisconsin Center for Investigative Journalism, the Wisconsin Freedom of Information Council and the Madison Pro Chapter of the Society of Professional Journalists.

"The Open Records Law which Lynn Adelman introduced and worked hard to pass, and the Open Meetings Law he championed, are the bedrock documents of open government in Wisconsin," said Bill Lueders, president of the Wisconsin Freedom of Information Council.

"All those who care about the state's traditions of openness and its commitment to an informed electorate, so essential to a representative democracy, owe him a huge debt a gratitude."

Adelman was born in Milwaukee. He is a graduate of Princeton University and Columbia Law School.

In 1977, Adelman was elected to the state Senate to represent the 28th District in southeastern Wisconsin. He held the position for 20 years.

Adelman was the principal sponsor of the current version of the state’s Open Records Law, passed in 1981, and a major participant in a 1983 revision of the Open Meetings Law.

Adelman, 73, was appointed in 1997 by President Bill Clinton as a judge in U.S. District Court for the Eastern District of Wisconsin in Milwaukee.

The Wisconsin Watchdog Awards, a celebration of investigative reporting and open government, also will feature a keynote address by Lea Thompson, an award-winning investigative journalist and University of Wisconsin-Madison graduate.

Thompson, a Wisconsin native, was a chief correspondent at Dateline NBC for 16 years, and is known for her hard-hitting investigative pieces on consumer, health and safety issues. She now teaches investigative reporting around the world and produces documentaries.

Also at the event, winners of the Wisconsin Freedom of Information Council’s annual Opee Awards will be recognized for their work promoting open government, and the Madison SPJ chapter will review the year in journalism.

The event at the Madison Club, 5 E. Wilson St., is sponsored by the Wisconsin Newspaper Association, Wisconsin Broadcasters Association, Wisconsin State Journal, Milwaukee Journal Sentinel, WISC-TV and the law firm McGillivray Westerberg and Bender.

Additional sponsors are being sought. Information is available here.

The evening will begin with a reception at 5 p.m., followed by dinner at 6. Tickets are available for $55.

Register online here. Attendance is limited to 120 and organizers expect all tickets will be sold.



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.



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.


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.


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