Wisconsin Freedom of Information Council

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Wisconsin Freedom of Information Council

Action alert on bill to gut information on WCCA (CCAP)

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SB 526, the bill that would purge the state's online records system of information about criminal cases that do not lead to convictions, or are overturned on appeal, passed a Senate committee yesterday on a 5-0 vote. The bill is now available for a full Senate vote.

This is the most serious attempt to date to deprive the public of full and accurate information about the state's court system through WCCA, or what everyone calls CCAP. It is on the fast track to passage despite opposition from state media and the Freedom of Information Council, state Attorney General J.B. Van Hollen, Director of State Courts John Voelker, individual clerks of court, and representatives of property owners.

Now is the time to make the case that the people of Wisconsin can be trusted to make appropriate use of the information on this system; that they don't need lawmakers stepping in to prevent them from knowing what is happening in the court system they pay for.

Without a doubt, some employers and others use the information on this system to unfairly deny opportunities to applicants. But there is no evidence this practice is as widespread as the site's critics claim. Representatives of business groups and landlord associations have offered credible testimony attesting to their commitment to following the law and using this information in appropriate ways. Some employers and landlords post job openings and put up "For rent" signs because they
actually need workers and want tenants, not simply so they can turn people away due to a dismissed charge from long ago.

The Wisconsin Freedom of Information Council fundamentally opposes the idea at the heart of this bill, that the way to deal with a perceived problem regarding the use of public information is to make it harder to obtain that information. More harm than good will come from this approach.

SB 526 would greatly restrict what records are available on WCCA and thus dramatically undercut the site's usefulness. Records showing that charges against an individual were dismissed or led to a finding of not guilty would no longer appear. Information would also have to be removed for convictions overturned on appeal.

Passage of this bill would be a boon for private providers of court records data, those companies that offer to run background checks on people for, say, $10 a pop or $30 for full access each year. And those private operators do not have the same checks on accuracy as does the state's system.

In fact, under this bill, WCCA would go from being a tool for tracking what happens in our state court system into being a registry of known offenders. Only the names of those found guilty would appear.

If this bill were to pass, WCCA would henceforth give a distorted view of what happens in our courts. For instance, every prosecutor would have a 100 percent conviction rate on every charge, because charges that were dismissed would not appear.

It would mean that most of the charges brought against former members of the Legislature, like Brian Burke and Chuck Chvala, would disappear from view.

The idea driving this bill is that ordinary citizens lack the intelligence or decency to make rational judgments about cases in which charges are dismissed or a defendant has been found not guilty. The people of Wisconsin deserve more credit than that.

 

December: HIPAA’s reach is often overextended

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Recently, I was told by a court official in Outagamie County that federal law prohibited the release of the name of a man I had just heard speak in open court. He was a participant in the county's Drug and Alcohol Treatment Court. He had been charged with driving while intoxicated as a fourth offense, but was offered a chance to go through a treatment program instead of serving jail time.

I attended the proceeding as a reporter for the Appleton Post-Crescent, working on a story for Gannett Wisconsin Media’s statewide probe into repeat drunken drivers. The man had made a point about the costs of the program and I wanted to verify his charge history.

But when I asked for his name, the court official said it could not be released, citing the federal Health Insurance Portability and Accountability Act of 1996. That law, commonly called HIPAA, protects private health information.

It also, as this episode attests, is often misapplied.

In this case, there was no valid reason for withholding the man's name, and after a discussion with the circuit judge, I was able to obtain it. I ended up using his comment but not naming him in my story.

This was a public program, run by publicly paid officials, involving criminal defendants serving court-ordered sentences. The decision of whether to use this person’s name should be up to the media, not the court official.

As the Reporters Committee for Freedom of the Press has noted, HIPAA remains a “prickly” obstacle for journalists. To help reduce conflicts and confusion, the group has sorted out just who and who isn’t impacted.

Health care organizations like hospitals, life insurers, ambulance services and public health authorities are all subject to HIPAA rules. Firefighters, police, court officials, reporters and patients themselves are not.

Neither are public officials who have nothing to do with the delivery of health care services. And yet, in one instance, a Louisiana State University representative told reporters he couldn’t discuss a player’s knee injury. “Due to these new medical laws, our hands are tied,” the official said.

Often, the most valuable information available to reporters is found on health facility directories, which are not protected by HIPAA. Hospitals may release an individual’s name, location in the facility and general condition. HIPAA also doesn’t bar reporters from interviewing patients in a waiting room.

Statistical information related to hospitals, including their billing data, is not covered by HIPAA. Much of this information can be released electronically without names attached.

The Association of Health Care Journalists has produced another useful list of what HIPAA does not protect, including police and fire incident reports, court records, birth and autopsy records.

Felice Freyer, the association’s treasurer and a member of its Right to Know Committee, said HIPAA overreach is widespread.

“Often times, people are unsure about the law and can’t be bothered to check so it’s easier to say ‘no’ and refer to HIPAA,” said Freyer, a health care reporter for the Boston Globe. “Frequently, hospitals say they can’t let you talk to a patient, but that’s not true.”

No one disputes that people have a right to privacy when it comes to personal medical matters. But that right should not be taken to absurd lengths, beyond what the law prescribes.

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. Nick Penzenstadler, formerly with the Post-Crescent in Appleton, is a reporter for USA Today.

 

Investigative reporter Umhoefer to receive Wisconsin Watchdog Award

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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.

 

January: Official calendars are a basic public record

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It’s a pretty simple question for a public official: “What exactly do you do with your time?”

Sometimes, the best way to answer that question is to obtain the official’s calendar, through the state’s open records law.

In my work as a reporter, I’ve done this for the state treasurer and his staff, who work for an office with few official duties. I’ve also used the monthly calendars of Gov. Scott Walker to plot his travel and track his day-to-day meetings.

So when I wanted a better understanding of how the duties of Sheboygan Mayor Mike Vandersteen and Chief Administrative Officer Jim Amodeo overlap, I asked to see their calendars.

Amodeo’s response was simply, “Oh, OK.”

Vandersteen’s response was more terse. While he said he would be willing to discuss his day-to-day duties, he considered the request a burden, given the small size of his staff and the fact that his calendar contained personal items.

Both officials eventually provided these calendars, but with a letter asserting that these documents did not actually constitute a record under state law. As such, the letter said, they had no obligation whatsoever to hand them over.

It was a bit bewildering. How could these records, so basic to the performance of their official duties, be exempt from the law?

The letter’s reasoning was that calendars are basically “akin to drafts” or notes prepared for the mayor or administrator’s personal use. Wisconsin’s open records law exempts such drafts or notes from disclosure requirements but construes this exemption narrowly, like all exemptions.

The city’s argument rests on a few out-of-state cases — one from Kentucky and one from California — in which courts upheld the denial of access to calendars. In short, both courts decided that the public’s interest in disclosure was outweighed by the government’s interest in keeping those records under wraps.

In a more recent case, the city of Philadelphia successfully argued that the calendar of its mayor and city councilmen were not records. A Pennsylvania appellate court found that while they may carry an official purpose, the calendar itself is more of a “working paper” that is personal to the office.

But these cases mean little given Wisconsin law’s broad presumption of access and the narrowness with which courts have interpreted the exemption for drafts.

Based on state case law and guidance from the Wisconsin attorney general, the Wisconsin Freedom of Information Council advises: “Once a document is shown to anyone besides the originator or a person working on his or her behalf, it is no longer a draft.”

Vandersteen stated that redacting his calendar and turning it over was simpler than waging a long legal battle. But that means the issue, and his interpretation, will not be tested in court.

Amodeo said he simply didn't see the use in withholding his calendar, especially given the negative publicity that could follow: “I mean, if I shut you down and say, ‘No, you can’t have it,’ then you’ll just end up writing something on that. Then everyone starts asking, ‘Well, what does he have to hide?’ ”

Therein lies the absurdity of such a dispute: You don’t need a legal requirement to understand that the public has a right to know what their officials are up to. Erecting barriers to the most basic information is not just against the law — it’s also politically unwise.

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. Jason Smathers is a reporter with the Sheboygan Press.

 
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