Wisconsin Freedom of Information Council

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Action Alert on Legislature's Attack on Open Records Law

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The Wisconsin Freedom of Information Council is issuing an emergency action alert in response to the Joint Finance Committee’s shocking assault on the state’s long and proud tradition of open government.

This cowardly action, passed by the Committee on July 2 just hours after its introduction, is part of an omnibus motion stuck into the state budget. The committee chairs have refused to say which lawmakers asked for these changes, which will effectively free the state Legislature from the state’s Open Records Law.

The changes would exempt legislative communications from the law; shield from release all “deliberative materials” created for the purpose of making law or public policy (including opinions, analyses and briefings prepared at public expense); shut down public access to all records created in the process of drafting legislation; and specify that the Legislature can freely exempt any record from disclosure simply by passing a rule or policy.

These radical and sweeping changes represent a full-frontal attack on Wisconsin’s history of open government. They are clearly intended to block the public from discovering what factors drive the official actions of government, especially the Legislature, and will inevitably lead to abuse, malfeasance and corruption.

Should they become law, these changes would free the Legislature of the obligations of transparency in place for all other state and local governmental agencies. They will spare lawmakers from the burden of accountability to the people who elect them and pay their salaries. They will shield from public view the collusions of lawmakers with special interest groups, lobbyists and campaign donors.

In one 2014 case, bill drafting records exposed the involvement of a wealthy campaign donor in drafting a bill that would have reduced his own child-support obligation. The changes inserted into the budget bill would keep these records secret.

Bill drafting records have long been understood to be public records, and are now routinely posted online. The change inserted into the budget would make release of these records illegal.

In addition, the omnibus bill cuts away at public access to information about criminal charges in the state’s online court records system. It would allow charges filed against some individuals to “disappear” from this archive. While not as sweeping as some past failed efforts to remove records from this system, it is being done with virtually no public discussion.

The records these changes would seal off have, on countless past occasions, been used to expose wrongdoing and provide essential information on the workings of government. We should be pointing this out, as well as reminding people of the very strong proclamations in favor of transparency that have been made by our elected officials, including Gov. Scott Walker, who as a candidate said that the state Legislature needs to be more transparent.

And all of these changes are strictly policy matters, which have absolutely no business being part of a budget bill.

The Council opposes these changes in the strongest possible terms. We call on our members and supporters, and the public at large, to rise in opposition to this attack on our state’s tradition of open and honest government.

Note: Members of the Legislature opposed to these changes will be holding a press conference on Monday, July 6, in the Assembly Parlor, state Capitol, 1 p.m.

Last Updated on Friday, 03 July 2015 07:36

July: UW shouldn’t hide finalist names

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A provision snuck into the state budget bill by the Legislature’s Joint Finance Committee would deal a significant blow to open government in Wisconsin.

The provision, part of an omnibus motion of changes affecting the University of Wisconsin System, would exempt universities from the rule in place for all other state agencies regarding the naming of finalists for key positions. No longer would they need to identify the five most qualified applicants, or each applicant if there are fewer than five.

Moreover, only a handful of positions would be subject to even this limited disclosure: UW System president and vice presidents, and the chancellor and some vice chancellors at each campus. Currently, the finalist disclosure law applies to finalists for all state positions not in the classified service.

The change will keep the public—state legislators included—from knowing which applicants are passed up for dozens of important university jobs, including highly paid coaches and top administrators.

Media outlets across the state have condemned the change, which passed on a 12-4 party line vote with Republicans in the majority.

“Take it out,” advised the Wisconsin State Journal. “The public has a right to see a list of finalists for key public positions before an applicant is hired.”

“The Joint Finance Committee's action would further erode an open records law that is needed in a democratic government,” wrote the Green Bay Press-Gazette.

“This change in public records law doesn’t belong in the budget bill,” argued the Kenosha News. “At the very least, a policy change like this ought to be discussed on its own, not as part of must-pass legislation.”

And Milwaukee Journal Sentinel editorial writer Ernst-Ulrich Franzen speculated that lawmakers want “to escape any real discussion or even awareness of the measure. And that’s because they know that the argument for the measure is so weak it would not survive public scrutiny.”

Ironically, in April, the Joint Finance Committee yanked another secrecy provision affecting the UW from the budget submitted by Gov. Scott Walker. This one would have shielded records of university research, including controversial experiments involving dangerous pathogens.

Rep. Michael Schraa, R-Oshkosh, a member of the Joint Finance Committee, has offered this defense of the provision regarding finalists: “Highly successful and qualified individuals who currently hold a position somewhere else may be less inclined to apply if they know their name is going to be made public, even if they aren’t up for final consideration.”

But applicants for high-level jobs at public universities have long accepted disclosure as part of the process. There is no evidence the UW System has suffered a dearth of qualified candidates as a result.

Alex Hummel, spokesman for the UW System, says the change would “focus” finalist disclosure rules on top administrators, “not our larger-than-typical unclassified staff population, as is currently the case.”

But why is transparency for these other jobs a bad idea? Consider that, in January, the UW publicly named its two top candidates to head the University of Wisconsin Press. Before the final selection was made, both made public presentations outlining their vision for this important institution. Isn’t that an example of how things should work?

If lawmakers don’t pull this provision from the budget, Gov. Walker should use his veto pen to do it himself. The university system does not need, or deserve, an exemption from accountability.

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, associate editor of The Progressive magazine, is the group's president.

Last Updated on Wednesday, 01 July 2015 11:22

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

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

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

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