Wisconsin Freedom of Information Council

  • Increase font size
  • Default font size
  • Decrease font size

May: Lawmakers should retain, release records

E-mail Print PDF

In early April, in a case brought by the conservative MacIver Institute against state Sen. Jon Erpenbach, D-Middleton, the Wisconsin Court of Appeals declared that communications from citizens to lawmakers are, as one judge put it, “subject to the open records law, without redaction.”

But the court also recognized that legislators have the power to tweak the rules for themselves — which is exactly what they’ve done on the critical issue of records retention.

Records retention rules determine how long custodians must keep records. State agencies and officials must retain documents for periods set by the state public records board. The default records retention period for local governments is seven years.

Yet the state’s law excludes “(r)ecords and correspondence of any member of the Legislature” from the list of records that must be retained. Legislators can keep records for seven years, one month, one day, or not at all.

Lawmakers must still provide any records they possess in response to a request. But they don’t need to provide documents they don’t have, and nothing compels them to keep documents.

It’s not hard to see that the law creates perverse incentives for legislators. It is much easier to delete a document than retain it. Deletion also avoids putting a legislator in the potentially uncomfortable position of having to provide a document to a constituent, reporter or political rival.

Yet legislators clearly possess some of the state’s most important documents. They make the laws that everyone must follow, and the public has a significant interest in how legislation is developed. This means knowing who is talking or writing to legislators and seeing what documents they receive.

The court of appeals recognized the importance of legislative documents in the MacIver Institute case. It said public awareness of who is doing what to influence public policy “is essential for effective oversight of our government.” The source of a communication is also important, whether it be public or private, labor or management, nonprofit or for-profit.

In the MacIver Institute case, the court ruled that Sen. Erpenbach must provide unredacted copies of emails he received during the debate over 2011 Act 10, which essentially ended collective bargaining rights for most government employees. Previously, the names and email addresses of senders were blacked out.

Sen. Erpenbach, to his credit, did not simply destroy the emails upon receipt. But under current law he could have.

Let’s hope the court of appeals ruling, by reaffirming legislators’ obligation to provide records, does not prompt a shred fest at the Capitol. In fact, legislators should establish retention policies that apply to all members of the Assembly and Senate, and give the public assurance that legislative records won’t be deleted.

To be clear, retaining records doesn’t always mean they must be disclosed. Custodians are still required to withhold sensitive personal information, like medical records. And custodians can deny a request or redact information if the public interest in nondisclosure outweighs the public interest in disclosure. It’s what’s known as the balancing test.

Records retention just preserves the public’s chance to see a record, even if that chance is later denied under confidentiality rules or the balancing test. Deletion doesn’t.

Legislators may be the ones holding the records related to their office, but at the end of the day, it’s still the public’s information. Legislators should respect the public’s right to know and retain their records.

It’s an issue all candidates for state Legislature should be asked about this election year.

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 with McGillivray Westerberg & Bender, is the group's vice-president.

Last Updated on Wednesday, 30 April 2014 09:20

April: AG’s office could do more on openness

E-mail Print PDF

Should enforcement of Wisconsin’s open records and open meetings laws depend on individual citizens having to file often costly and protracted lawsuits?

That is one option prescribed under these laws, and those who prevail in such cases can recover attorney’s fees.

But the laws also contain provisions intended to help people resolve disputes in a cheaper and less complicated way: Citizens can ask the state attorney general or county district attorney to sue a government authority, and any person can seek advice from the attorney general.

Yet, more than three decades after the Legislature enacted these provisions, questions about their effectiveness remain.

Gannett Wisconsin Media recently highlighted the cases of citizens who, after being brushed off by prosecutors, successfully sued public officials for violating open-government laws. Gannett’s stories also noted that Attorney General J.B. Van Hollen has not filed a single lawsuit to enforce compliance with these laws, while his predecessor, Peg Lautenschlager, had filed just a few such cases.

The stories shed much-needed light on how difficult it can be to fight improper government secrecy. They also touched on a broader problem: Hard data on disputes brought to the attorney general and district attorneys is almost nonexistent.

I’m writing this column to help fix that.

Recently, I completed a master’s thesis in media studies at the University of Wisconsin-Milwaukee on how the attorney general’s office has handled complaints about the public records law. I analyzed documents from more than 300 public records disputes during a six-year period. I also interviewed 17 people involved in those disputes.

Here is what I found:

  • The attorney general’s office denied every request for legal action, but such requests accounted for just a quarter of cases. Most of the time, requesters sought advice.
  • Nearly half of the cases directly concerned whether a requester had a right to a record. Other common issues included response times, fees and definitions in the law.
  • Cases overwhelmingly involved local authorities as opposed to state government.
  • The office was relatively timely, responding to nearly three-quarters of requests within 30 business days. Still, the range of response times varied widely — from within a week to nearly a year.
  • The office at times actively worked with parties to mediate disputes, though the degree of that engagement was inconsistent.

Ultimately, the findings confirm that the attorney general can play a meaningful role in helping citizens use the public records law and challenge improper government secrecy without litigation. At the same time, the study revealed complaints about and drawbacks to how the attorney general handles disputes.

For one thing, the study highlighted how difficult it is to track what kinds of complaints are being received and what is being done about them. In Gannett’s reports, a spokesperson for Van Hollen said the attorney general’s office does not track open-government complaints. That should change.

The office should regularly report caseload statistics about requests for assistance on the public records and open meetings laws, as do other states, including Pennsylvania and Indiana.

The office should also actively publish open-government correspondence containing noteworthy advice. It has not done so recently or on a routine basis.

Such action would enable citizens to monitor developments in the public records and open meetings laws, and to assess how the attorney general is handling disclosure disputes.

That is information everyone has a right to know.

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. Jonathan Anderson is a reporter for The Lakeland Times in Minocqua. His thesis is available online.

Last Updated on Monday, 07 April 2014 15:17

March: Open those cookies, and more

E-mail Print PDF

As part of national Sunshine Week (sunshineweek.org), March 16-22, members of the Madison student and professional chapters of the Society of Professional Journalists fanned out across the capital city, handing out fortune cookies.

We dropped a handful in the offices of the elected officials, from Madison School Board to Gov. Scott Walker, as well as some unelected boards like the University of Wisconsin System Board of Regents.

Each cookie contained a wise and honorable message: "You will be open and transparent when conducting public business." "You will uphold the letter and the spirit of the Wisconsin open records and open meetings laws." "A year of good fortune showers those who revere open government."

The fortune cookies and their messages serve as a reminder to those elected or appointed to do the public's business that they work for you - the voting and taxpaying public. Here are some examples from over the past year that illustrate why these Sunshine Week reminders, no matter how gimmicky, are needed:

* We now know how brazenly Walker's Milwaukee County executive office was in seeking to hide its business from the public, to the point of setting up a secret email system. Investigators suspect, and common sense suggests, Walker knew about the secret system, and the overt commingling of his public and campaign staff. No one begrudges politicians from considering political calculations when making decisions, but we expect them to stay on the right side of the law.

* Sen. Leah Vukmir, R-Wauwatosa, and Attorney General J.B. Van Hollen have argued Vukmir and all lawmakers are exempt from the records law for their entire terms in office - an unprecedented legal position that would let lawmakers ignore the law. Meanwhile, Sen. Jon Erpenbach, D-Middleton, is fighting a legal battle to shield the names of constituents who contact him - an approach adopted by some of his legislative colleagues but rejected by other elected officials, including Walker.

* In the waning days of the legislative session, lawmakers are considering a bill to eliminate numerous records from the state online court database. This website simply includes information that is already public record in courthouses across the state; putting it online and making it available to the public only makes sense.

* State lawmakers snuck numerous last-minute measures into the 2013-15 state budget, including ones to create a bail bonds system and expel an investigative journalism center from the UW-Madison. Credit Walker for vetoing them.

* The same budget writers used obscure language to direct funding to a politically connected sportsmen's group that had publicly obscured its tax status and whose leader had run afoul of hunting law. Literally, this was the gang that couldn't shoot straight.

* Twice, UW officials pushed language seeking to create blanket exemptions for university research. You'd think after one embarassing beat down they would have learned their lesson. Both measures were stopped in their tracks.

* The university and the UW System also failed to adhere to legal guidance from the Attorney General's office to reveal the names of five finalists for their top jobs in a timely manner. The System did not release the names of all finalists until after it had chosen a president.

* Finally, municipalities across the state are shielding information on traffic tickets out of fear that they will be sued, under a highly questionable interpretation of a federal court ruling. Curiously, no other state is taking this approach.

Let's hope the people who received our fortune cookies take them not only to stomach but heart.

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

Last Updated on Wednesday, 19 March 2014 07:28

Investigative reporter Umhoefer to receive Wisconsin Watchdog Award

E-mail Print PDF

Milwaukee Journal Sentinel investigative reporter Dave Umhoefer, winner of a Pulitzer Prize for his 2008 investigation into pension padding in Milwaukee County, has been named the 2014 recipient of the Distinguished Wisconsin Watchdog Award.

The award is a highlight of the fourth annual Wisconsin Watchdog Awards reception and dinner, presented jointly 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 April 23 event, a celebration of open government and investigative journalism, is open to the public, with proceeds supporting the nonprofit and nonpartisan Wisconsin Center for Investigative Journalism.

"For more than 25 years, Dave Umhoefer has held the powerful accountable for their actions and provided insights into key issues facing Wisconsin communities," said Andy Hall, executive director of the investigative center.

"When we created this award four years ago to recognize an individual’s contributions to open government or investigative journalism, all of us knew that Dave someday would receive it."

Past winners of the award are Dave Zweifel, editor emeritus of The Capital Times and a founder of the Wisconsin Freedom of Information Council; the late Dick Wheeler, founder of the Wheeler Report newsletter; and U.S. District Court Judge Lynn Adelman, chief author of the state's open records law.

Umhoefer, a La Crosse native and University of Wisconsin-Madison graduate, received the School of Journalism and Mass Communication’s Distinguished Service Award in 2009.

Umhoefer is a member of the Journal Sentinel’s Watchdog Team, where his work includes PolitiFact Wisconsin. He also is an instructor at Marquette University, where he teaches an investigative reporting class.

“His investigation into pension padding by Milwaukee County officials was so thorough and meticulous that county officials reported themselves to the IRS before the story even ran,” Greg Borowski, the Journal Sentinel’s assistant managing editor for projects and investigations, noted in nominating Umhoefer for the Distinguished Wisconsin Watchdog Award.

“That is emblematic of the work Dave has done. It often tackles complex and arcane subjects or involves reams of paper documents or millions of electronic ones. He is able to get past the spin, sort out the truth and then write with unquestioned authority.”

The Wisconsin Watchdog Awards event also will honor winners of the Freedom of Information Council’s annual Opee Awards for their work promoting open government. The Madison SPJ chapter will review the year in journalism.

The event at The Madison Club, 5 E. Wilson St., begins with a reception at 5 p.m., followed by dinner at 6.

Tickets are available for $55. Discounts are available for purchases of tables. Register online.

Lead sponsorship of the event is provided by the Wisconsin Newspaper Association Foundation. Additional support is provided by the Wisconsin Broadcasters Association and two law firms -- McGillivray Westerberg & Bender and Schott Bublitz & Engel.

Additional sponsors are being sought. Sponsorship information is available online.

Attendance is limited to 120 people.


March: Openness awards cap trying year

E-mail Print PDF

This last year has seen almost constant threats to the state's openness laws. We’ve had local law enforcement agencies suppressing drivers license information, a state senator claiming immunity from civil suits to evade the open records law, and attempts to deny public access to records of circuit court cases and university research.

All of these threats were met with opposition, and none of these battles has yet been lost. But the year served to remind us that the price of protecting our state's traditions of open government is eternal vigilance.

As part of national Sunshine Week (March 16-22), the Wisconsin Freedom of Information Council is bestowing awards for extraordinary achievement in the cause of open government. There are five positive Openness Awards, or Opees, and one negative, the Nopee.

The awards will be presented at the fourth annual Wisconsin Watchdog Awards Dinner in Madison on Wednesday, April 23. The event is presented jointly by the Council, Wisconsin Center for Investigative Journalism, and the Madison Pro Chapter of the Society of Professional Journalists.

Political Openness Award (“Popee”): Dan Ault. Throughout the state, dozens of law enforcement agencies are withholding basic information like names and ages from accident reports, under an overzealous interpretation of a federal court ruling. Ault, the police chief of Oconto in northeast Wisconsin, this summer bucked the trend and began providing fuller disclosure. “It’s just common sense,” Ault said. And it's about time other officials started following his lead.

Citizen Openness Award (“Copee”): Becky Kostopolus and Marilyn Bartelt. Kostopolus, a mother in Appleton, complained to the school district about teachers who posted inappropriate comments about her son. District officials wouldn't say what if any action they took in response, so Bartelt, the boy's grandmother, requested disciplinary records for seven educators. When the request was denied, she sued, with the help of attorney April Barker. In February, a judge ordered the records released.

Media Openness Award (“Mopee”): Ellen Gabler and Allan James Vestal, Milwaukee Journal Sentinel. Reporter Gabler and news applications developer Vestal documented gaping disparities and delays in a common genetic test given to newborns, resulting in preventable disability and even death. The pair fought to obtain records from about 30 states, then worked to analyze and present the data. The “Deadly Delays” series, also involving reporters Mark Johnson and John Fauber and photojournalist Kristyna Wentz-Graff, spurred congressional action and individual state reforms.

Open Records Scoop of the Year (“Scoopee”): David Wahlberg, Wisconsin State Journal. This seasoned reporter culled public records and created his own database to expose the lax treatment by the state medical-examining board of physicians. Wahlberg found cases involving serious injury and even deaths that drew mere reprimands. The series, “Doctor Discipline,” led to changes in practice and promises of further reform.

Whistleblower of the Year: David Salkin. When this Milwaukee property owner learned that the bad tenants who rented space from him for a store were undercover federal agents, he contacted the press. The Milwaukee Journal Sentinel’s year-long investigation exposed a series of failures and rogue tactics that put the community at risk, prompting a federal investigation and congressional hearings.

No Friend of Openness Award (“Nopee”): Sen. Glenn Grothman. As noted above, there was no shortage of attacks this year on the public’s right to know by members of the Legislature. But Grothman, R-West Bend, took top honors for sponsoring a bill to end the requirement that political campaigns disclose the principal employer of major donors, and another bill to purge information from the state's online court records system.

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 Wednesday, 12 March 2014 10:17

Page 2 of 10