Wisconsin Freedom of Information Council

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May: Open government must embrace digital age

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In a recent column, state Attorney General Brad Schimel called for updating the state's open government laws to meet the challenges of the digital age. He’s exactly right. The laws were enacted long before the Internet — let alone Facebook and Twitter — came into being. They must be updated and strengthened to make sure that citizens in the digital age have the access to the government data they need.

As Schimel noted, “the laws do not provide guidance to identify the limits of open government. As such, what is a proper determination under the open government laws ends up being decided through litigation in our courts. The laws leave well-intentioned officials with no help in answering difficult open government questions.”

That doesn’t do much to help citizens.

Schimel’s point was underlined by an April 21 report from the Pew Research Center, titled “Americans’ Views on Open Government Data.” Among the report’s findings: “65 percent of Americans in the prior 12 months have used the Internet to find data or information pertaining to government.”

Most of that is for simple stuff: paying a fine or renewing a license or finding the hours of a local park or a government office. But it still illustrates how much citizens are using their computers, tablets and smartphones to obtain government information. That information needs to be easily accessible, up-to-date and in compliance with open government laws.

There’s also this from the report: “Few Americans think governments are very effective in sharing data they collect with the public.” Just 5 percent say the federal government does this very effectively, with another 39 percent saying the federal government does this somewhat effectively. State and local governments received similarly low numbers for how effectively they shared data.

“Americans have mixed hopes about government data initiatives,” the report found. “People see the potential in these initiatives as a force to improve government accountability. However, the jury is still out for many Americans as to whether government data initiatives will improve government performance.”

Much of that depends on how much people trust government, and how partisan they are. Those with a little more trust in their government — such as, generally speaking, Democrats — believe open government initiatives can work. Those who don’t — such as, generally speaking, Republicans — not so much.

For my part, I think open government initiatives do work to hold government officials accountable and provide better government. That’s not because I’m particularly more trusting of government; coming of age during the Vietnam and Watergate era made me a profound skeptic.

But I know that making sure records are as easily accessible as possible and that meetings are open gives citizens and journalists the tools they need to keep a proper watch on their representatives at City Hall, the state Capitol and in Washington.

All of which brings me back to Schimel, who promised last month to hold an open government summit “at which stakeholders, from media representatives, to citizen watchdog groups to government records custodians, will work to answer the vexing questions left unanswered by our current laws.”

He also said that the state Department of Justice “needs to lead by example, and we are overhauling our own public records practices.”

Schimel’s office says the summit is in the works, possibly for this fall. It can’t happen too soon. Given the findings of the Pew report, governments need to do a better job of providing information to their digital consumers, and they need to make sure the laws work for all citizens.

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. Ernst-Ulrich Franzen is associate editorial page editor of the Milwaukee Journal Sentinel, where this column first appeared.

Last Updated on Thursday, 30 April 2015 12:05
 

April: Openness laws could use an update

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Wisconsin’s new attorney general, Brad Schimel, contended in a recent column that the state’s open government laws “are outdated and do not adequately address today's technological environment.” He promised to initiate a process to provide “clearer guidance … without reducing rights to access.”

The Wisconsin Freedom of Information Council, a state group devoted to protecting public access to meetings and records, supports this effort. The group’s “Legislative Wish-List” calls for establishing clear rules regarding the use of new technologies, so they do not make it harder for the public to track the actions of government.

Issues surrounding records access and technology have also enjoyed the national spotlight in recent weeks as former U.S. Secretary of State Hillary Clinton defended her use of a private email account for public business. Clinton cited “convenience” as her reason for this decision, which she admitted was a mistake.

One doesn’t have to be a Cabinet official to understand the quest for convenience in our era of busy scheduling and extreme multitasking. But because of Clinton’s unilateral decision, the public may be irretrievably denied any opportunity to independently review whether now-deleted electronic documents related to public business. For the public, therefore, Clinton’s approach made meaningful oversight of her communications very inconvenient, if not impossible.

Updating Wisconsin’s open records law, as Schimel proposes, could help clarify the obligations of public officials with respect to emails and other records that exist in electronic form. But it is critical that any updates be guided by the law’s stated and essential purpose: to provide the greatest possible oversight of the actions of government.

Public records advocates must be vocal and vigilant to ensure that revisions or guidance have the effect of amplifying access. Otherwise, there is a danger that the process proposed by Schimel could result in less access.

A few years back, the city of Madison tweaked its records law in light of new technologies. Its revised ordinance expressly requires that employees who use private email for public business must copy an official government account, thereby preserving a government record of the message.

The city’s ordinance asserts that the state’s records law provides “little or no guidance” to help resolve gray areas regarding new technology. But the statutory definition of a “record” is the most relevant guidance, and it broadly encompasses “any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics.”

There are issues that need to be resolved regarding the use of email and other technologies, like text messages, including what records must be retained and for how long. In all cases, the analysis should start from the premise that the public is entitled to maximum access.

Wisconsin’s records law states this explicitly, and instructs that providing the public with as much information as possible about the workings of government is “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.”

Requests for access should always be met with the assumption that whatever has been created must be shared. That’s true regardless of what technologies are used to convey information.

Public access is not an ideal that need be honored only when it is convenient, nor should any modifications to the records law be based on such considerations. The law itself makes clear that, in a democracy, access to information must prevail over convenience.

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. April Barker, a council member, is an attorney with Schott, Bublitz & Engel of Brookfield.

Last Updated on Wednesday, 01 April 2015 09:40
 

March: Don't let the UW hide research records

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Deep in the bowels of Gov. Scott Walker’s proposed 2015-17 budget is language to exempt research done by the University of Wisconsin System from the state’s open records law, unless it is published or patented.

This blanket exemption would spare the UW from needing a good reason to deny access to these records, as current law requires. Instead, universities could categorically spurn inquiries from citizens, media and even lawmakers looking into controversial research, potential threats to public safety, conflicts of interest or how tax dollars are spent.

Two prior attempts to exempt records of campus research, in 2013 and 2014, failed because Republican lawmakers refused to go along. “It clearly needs more discussion,” a UW lobbyist conceded after the second failed attempt. But now Walker has revived the idea in his budget, with little to no discussion having taken place.

A university official recently told The Associated Press that the UW merely seeks “a more level playing field” with states that restrict access to such records. This prompted editorial writer Ernst-Ulrich Franzen of the Milwaukee Journal Sentinel to ask two excellent questions:

“But can the university offer examples of where research has been hurt by the current rules? Or examples of a loss of funding because they were unable to compete because of the current rules?”

I forwarded those questions to UW System officials. Bill Barker, who works in the UW-Madison’s Office of the Vice Chancellor for Research and Graduate Education, provided a detailed response.

Barker listed 24 other states that restrict access to records of university research. But UW officials, he acknowledged, “cannot point to a specific instance of lost intellectual property or misappropriated research” due to Wisconsin’s records law.

However, he said, “Given the hypercompetitive environment in which we compete for scarce research resources, we feel a proactive and conservative strategy is appropriate.” Why wait for something bad to happen when you can crack down on information preemptively?

Barker also cited the “very significant burden” of records law compliance. He said one recent request from USA Today for all open and closed session minutes for the UW-Madison’s Institutional Biosafety Committee “consumed much of one of our employee’s time for almost three-and-a-half months” because of the need to painstakingly redact certain information.

I checked in with USA Today reporter Nick Penzenstadler, who made this request. He said the paper obtained two years’ worth of minutes but noted that federal rules require these to be made public on request. In other words, changing state law would not alleviate the UW’s burden in this instance — a statement Barker, given a chance, did not refute.

Moreover, federal authorities advise there are “multiple ways to make minutes available that are relatively unburdensome to both the institution and the requester.” And in fact, Penzenstadler said, “other universities keep these records in a way so they can be posted online without months of redactions.”

Among the records at issue in USA Today’s request were those regarding a UW-Madison study on deadly pathogens that has drawn international concern about potential dangers to the public.

But Barker said the UW considers the volume of requests it receives for such records to be “an unfair assault on academic freedom which we cannot condone or support.” He specifically mentioned “lethal pathogens,” along with records of research involving animals, stem cells and climate change, as the kind of requests for which the UW sought relief.

Such disregard for Wisconsin’s tradition of open government, and for the public’s right to know, does not belong in the bowels of the state budget. The bowels, maybe, but not the budget.

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.

Last Updated on Wednesday, 18 February 2015 10:20
 

Opee winners: Group flags open government heroes and zeroes

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For the ninth straight year, the Wisconsin Freedom of Information Council is bestowing Openness in Government awards, or Opees, in recognition of achievements high and low. The awards are part of the observance of national Sunshine Week (sunshineweek.org), March 15-21.

The nonpartisan council consists of representatives of media organizations and others devoted to the cause of open government. The Opee awards will be presented at the fifth annual Wisconsin Watchdog Awards Dinner in Madison on Wednesday, April 8. The winners for 2014-15 are:

Media Openness Award (“Mopee”): Gannett Wisconsin Media. Wisconsin’s open records and open meetings laws grant county district attorneys and the state attorney general authority to prosecute violations. But a series of articles in March 2014 by Gannett reporters Eric Litke and Jim Collar found they rarely do so, leaving citizens and media to shoulder the burden of pursuing legal action. As the Appleton Post-Crescent, a Gannett paper, noted in an editorial, “it seems like prosecutors aren't doing their jobs to protect open government.” That needs to change.

Political Openness Award (“Popee”): Karen Domagalski, operations manager, Milwaukee County Medical Examiner's Office. In a state where some medical examiners and coroners withhold basic information about death investigations, Domagalski has promptly released these reports and even helped reporters track things like child deaths and overdose deaths. The public is well-served by her efforts.

Open Records Scoop of the Year: (“Scoopee”): John Diedrich, Milwaukee Journal Sentinel. Dennis Munson Jr.’s first amateur kickboxing match, in a Milwaukee venue in March 2014, was also his last: the 24-year-old collapsed in the ring and died shortly thereafter. Investigative reporter Diedrich fought to obtain video of the fight from police and prosecutors, and used it to document multiple and egregious failings on the part of fight officials. His in-depth reporting on this unregulated sport prompted investigations and the introduction of legislation that could save lives.

Whistleblower of the Year (“Whoopee”): Ryan Honl. This Gulf War veteran and West Point graduate quit his job at the Veterans Affairs Medical Center in Tomah after two months, filing a whistleblower complaint decrying its prolific use of narcotic painkillers. Honl also blew the whistle on U.S. Sen. Tammy Baldwin and others for failing to act, and served as a source for the national Center for Investigative Reporting, which documented a huge increase in opiate prescriptions at the Tomah facility. A Baldwin staffer got the ax, and the VA’s use of painkillers is getting national scrutiny.

No Friend of Openness (“Nopee”): State Department of Administration: This $1 billion-a-year agency claims it lacks resources to avoid long response times on records requests, but has no excuse for the ridiculous secrecy it has brought to picking a developer for the nearly $200 million Hill Farms office project in Madison. It has at various times refused to name the bidders, tentative winner and even selection committee members, claiming disaster would ensue should these cats escape the bag. The DOA knows better, and the public deserves better, too.

The “Oopsie”: Accidental leaks in the John Doe II probe. This special award is being given to acknowledge the screw-ups that have shed light on the second of two secret probes involving Scott Walker. A leak in February identified probe targets. A failed effort to fully redact information in March revealed that a judge’s ruling that seized records be returned was stayed pending judicial review. And records showing Walker campaign coordination with “independent” groups became public through an accidental breach in August. This isn’t how open government is supposed to work, but we’ll take it.

Your Right to Know is distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a non-profit group dedicated to open government.

Last Updated on Wednesday, 25 March 2015 21:42
 

Action alert on proposed exemption for records of UW research

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The Wisconsin Freedom of Information Council is issuing an action alert regarding Gov. Scott Walker's proposal to exempt records of University of Wisconsin research from the state's Open Records Law. The governor's budget bill, SB21, on P. 181-182, would create this new section of the statute:

19.36 (14) UNIVERSITY OF WISCONSIN SYSTEM AUTHORITY. Any authority may withhold from access under s. 19.35 (1) information in a record that is produced or collected by or for the faculty or staff employed by the University of Wisconsin System Authority in the conduct of, or as a result of, study or research on a commercial, scientific, or technical subject, whether sponsored by the University of Wisconsin System Authority alone or in conjunction with an authority or a private person, until that information is publicly disseminated or patented.

This would create a blanket exemption for all records of UW research that university officials choose to not disseminate or patent. It would be invoked to prevent public access to records regarding controversial research. It would keep the public from knowing details about the conduct of publicly funded institutions and allow abuses to go undetected.

This is the third attempt in recent years to shut off public access to records of university research.

The first prior attempt occurred in May 2013. University officials asked the Legislature's Joint Finance Committee to insert language into the budget to shut down access to records of UW-Madison research. They were not successful. A memo to lawmakers circulated as part of this effort specifically cited the UW's desire to avoid having to respond to requests for research involving the use of animals, an area of study that even defenders believe raises ethical questions that warrant public awareness and discussion.
Then, in February 2014, lawmakers introduced AB 729 just days before holding a public hearing on same. The Legislative Reference Bureau's analysis said the bill would exempt "information, data, or records produced or collected by or for faculty or staff of [UW System] institutions as a result of study or research on commercial, scientific, or technical subjects. The exemption applies whether or not the study or research is sponsored by the institution alone or in conjunction with a governmental body or private concern. The exemption expires when the information is publicly released, published, or patented."

State Rep. Steve Nass, then chairman of the Assembly Committee on Colleges and Universities, now a member of the state Senate, objected to this change. It was removed from the bill prior to the hearing.

Legislation deemed dead on arrival by the Joint Finance Committee and an Assembly committee should not find new life in the governor's budget. Any such change should be deliberated as stand-alone legislation, on its merits. Or lack thereof.
Current law already allows state universities, like any state or local public authority, to deny access to records if they can make the case that the harm from release outweighs the presumption that the public is entitled to access. This bill would eviscerate that standard for the University of Wisconsin. No longer would our universities need a good reason, or any reason, to deny access.

We hope that advocates for open government in Wisconsin will unite in opposition to this bad idea.
Last Updated on Thursday, 05 February 2015 11:45
 


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