Wisconsin Freedom of Information Council

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Action Alert on Changing Disclosure Rules for UW System Job Finalists

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The Wisconsin Freedom of Information Council is deeply opposed to a change to Wisconsin's open records law that was inserted into the budget late last week by the Joint Finance Committee. It passed on a party-line vote of 12-4, with Republicans in the majority.

The change, part of Omnibus Motion #521, Item 14, P. 3, would exempt the UW from the requirement in place for all other state agencies with regard to naming the finalists for key positions. The UW would still have to reveal those applicants whose names are "submitted for final consideration to an authority for appointment," but it would be spared from having to identify the five most qualified applicants, or each applicant if there are fewer than five.

Moreover, the change limits this disclosure requirement to only the following positions:  UW System president and vice presidents, and the chancellor and vice chancellors for each campus.

Current law, at 19.36(7) of the state statutes, applies to all state positions not in the classified service.

This is a major change in state open records law that will keep the public, state legislators included, from knowing what applicants were passed up for important university positions, including coaches and top administrators.

For instance, the UW would apparently no longer have to release the names of finalists to head the University of Wisconsin Press, as it did in January. Before the final selection was made, the two top finalists made public presentations regarding their vision for this important institution. Isn't that an example of how the process should work?

It is baffling why lawmakers, who have been critical of the UW in other instances, would want to free it from the burden of minimal accountability. Who is behind this change and why do they think it is needed? (As of this writing, UW System spokesman Alex Hummel has not provided additional information or perspective, as requested on Monday.)

We hope this is an issue that you look into and editorialize about. Unless or until there is a full public airing of the need for this change, it should be pulled from the budget or vetoed by the governor.

Last Updated on Thursday, 04 June 2015 09:00

June: No ‘executive privilege’ for records

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The office of Wisconsin Gov. Scott Walker has crafted a new interpretation of the state’s open records law, claiming it can exempt records used in developing a final decision from disclosure. In this case, “new” is not “improved.”

Earlier this year, records requesters asked the office for its communications with the Department of Administration, after the governor’s proposed budget called for removing the “Wisconsin Idea” from the University of Wisconsin System’s mission statement.

The governor’s office, in response to these requests, refused to provide records containing “preliminary analysis and deliberations created and exchanged by and among employees of DOA and employees of the governor’s office,” before the budget was introduced.

Why? It said releasing these records would “discourage frank internal discussions” among budget-writing staff and “risk public confusion as a result of publishing non-final proposals,” which might not be adopted.

Wisconsin’s open records law creates a broad presumption of openness, and courts have held that exceptions must be “extremely narrow and well-defined.” The federal government and some states have recognized a “deliberative process” or “executive privilege” exemption to disclosure. But Wisconsin has not, and for good reason.

The public has the right to see what information the government used to reach a decision, and what alternatives were considered. Other bill-drafting records are routinely made public after legislation is introduced. These records also reveal who took part in decision-making — a critical issue in the “Wisconsin Idea” budget snafu, after some documents showed DOA specifically requested that change.

When records are withheld, people inevitably wonder: What are they trying to hide? Public confidence in government is stronger when people can see the process as well as the result.

The Governor’s records denials also suggest the public cannot be trusted with decision-making information, or lacks the capability to distinguish between final and non-final decisions. Yet Wisconsin has gone decades without recognizing an executive privilege to disclosure. Pandemonium has not ensued.

If anything, the need for transparency has grown stronger as the budget is increasingly used to make policy. People want to know the basis for changes that affect key areas of their lives, like long-term care, schools and transportation. They also deserve that information on a meaningful timeline, while there’s still an opportunity to weigh in on changes before they are final.

Two of the denied records requesters have since filed lawsuits. The Center for Media and Democracy was the first. “(B)lowing a new hole in the public records law to keep (the Wisconsin Idea change a) secret would do grave damage to Wisconsin’s traditions of clean and open government,” said general counsel Brendan Fischer.

Katy and Jud Lounsbury and The Progressive magazine challenged the denial of a February request. Their complaint says the withheld records “are quintessentially the kinds of records that the public records law requires to be made available to the public and the press in response to records requests.”

Opposition to an “executive privilege” exemption is shared across the ideological spectrum. Rick Esenberg, executive director and general counsel of the conservative Wisconsin Institute for Law and Liberty, recently blogged that the CMD denial was “wrong under our state law.” He said the idea that records can be withheld “because it might be awkward to expose the government's deliberative processes ... is one that our state Legislature, in enacting the law, has rejected.”

Let’s hope their view wins out. Otherwise, custodians will have a dangerous new tool to deny access to decision-making that affects us all.

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

Last Updated on Monday, 01 June 2015 12:28

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

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

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

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