FOR IMMEDIATE RELEASE
Contact: Bill Lueders (608) 669-4712
March 8, 2016
Wisconsin Freedom of Information Council names “Opee” winners
Wisconsin’s Republican attorney general and a key GOP lawmaker are among the recipients, good and bad, of the 2015-16 Openness Awards, or Opees, bestowed annually by the Wisconsin Freedom of Information Council.
The awards, announced in advance of national Sunshine Week (sunshineweek.org), March 13-19, recognize extraordinary achievement in the cause of open government. It is the tenth consecutive year that the awards have been given.
“In 2015, we saw shocking attacks on the state’s traditions of open government,” said Bill Lueders, council president. “And while we are pleased to be able to recognize a few heroes, it is profoundly dismaying that we had so many zeroes to consider in rating assaults on transparency.”
Besides a cowardly attempt by lawmakers to gut the state’s open records law in early July, lawmakers acted to reduce transparency in campaign finance reports and Gov. Scott Walker’s administration embraced extra-legal interpretations of statutory language to justify shutting down records access.
“If not for the loud and clear opposition of Wisconsin residents from across the political spectrum, we would have lost much more ground than we did,” said Lueders, noting the changes forced by public reaction to the July proposals and to a new, immediately abused change in the definition of “transitory records.”
The Wisconsin Freedom of Information Council is a nonpartisan group that seeks to promote open government. It consists of about two dozen members representing media and other public interests. Sponsoring organizations include the Wisconsin Newspaper Association, Wisconsin Broadcasters Association, Wisconsin Associated Press, Wisconsin News Photographers and the Madison Chapter of the Society of Professional Journalists.
The winners will be invited to receive their awards at the sixth annual Wisconsin Watchdog Awards Dinner in Madison on Wednesday, April 20. The event is presented jointly by the Wisconsin Center for Investigative Journalism,Wisconsin Freedom of Information Council and the Madison Pro Chapter of the Society of Professional Journalists.
Awards are being given this year to institutions and individuals in six categories. The winners are:
Political Openness Award (“Popee”): Brad Schimel. Wisconsin’s Republican attorney general offered strong public opposition to the Legislature’s attack on the open records law, and helped affirm the value of open government at a summit he organized. Schimel’s new Office of Open Government has also led by example in setting out to improve its response time to records requests. The Council doesn’t agree with the AG on everything, but is pleased with how seriously he takes his statutory role to interpret and enforce the state’s openness laws.
Media Openness Award (“Mopee”): George Stanley and the Milwaukee Journal Sentinel.
When state lawmakers launched their sneak attack on the state’s open records law, the Milwaukee Journal Sentinel and its editor clicked into high gear, including a front-page editorial that helped force legislative leaders to back down, followed by aggressive reporting to uncover who was responsible for this proposal. Stanley and his staff, including editorial page editor David Haynes and associate editor Ernst-Ulrich Franzen, remained strong advocates for open government throughout the year, beating back other threats.
Citizen Openness Award (“Copee”): Sheila Plotkin. This McFarland resident undertook a huge open records project. She has battled with lawmakers who voted to dismantle the Government Accountability Board and hike political spending while decreasing transparency in a new campaign finance law to release the input they received from citizens on these issues. The results—showing that lawmakers disregarded the overwhelming weight of this input—are posted online, at we-the-irrelevant.org.
Open Records Scoop of the Year: (“Scoopee”): Greg Neumann, WKOW-TV. This was a banner year for stories based on records, including the Wisconsin State Journal’s reporting on bad state economic development loans, the Milwaukee Journal Sentinel’s uncovering of abuse allegations at a juvenile prison, and the Center for Media and Democracy’s discovery of changes to the “Wisconsin Idea.” But top honors go to this Madison television station for exposing how Walker administration officials and otherusedpersonalemail accounts to conduct official business, contrary to public assurances.
Whistleblower of the Year (“Whoopee”): Molly Regan . This former state employee quit her job when her concerns about questionable practices at the Wisconsin Economic Development Corp. were not, she believed, taken seriously. And she did not stay quiet about it, talking to The Progressive magazine and providing critical information that formed the basis for the Wisconsin State Journal’s story on how top state officials had pushed for a failed $500,000 loan to a struggling Milwaukee construction company, spurring new safeguards on how agency dollars are spent.
No Friend of Openness (“Nopee”): Robin Vos. Plenty of people deserve blame over the mid-summer attack on open records. Gov. Walker’s staff helped with the drafting and all 12 Republican members of the Joint Finance Committee voted for the changes after strenuous objections were raised by committee Democrats. But Assembly Speaker Vos was the main architect and subsequently sought a bill to exempt the Legislature from the records law. Vos also authored a bill amendment to end the longstanding requirement that significant donors to political campaigns reveal where they work, bringing darkness where once there was light. He was the worst of the worst in an abnormally bad year.
On Sunday, August 14, after a night of unrest prompted by the fatal police shooting of a black man, Milwaukee Police Chief Ed Flynn said his review of body camera video of the incident proved the officer had acted appropriately.
“The individual did turn toward the officer with a firearm in his hand,” Flynn stated, later saying the man, 23-year-old Sylville Smith, “was raising up with” the gun.
Milwaukee Mayor Tom Barrett said a still photo he was shown from the video “demonstrates, without question, that (Smith) had a gun in his hand.” In fact, Barrett declared , the officer “ordered that individual to drop his gun, the individual did not drop his gun.”
This purportedly exculpatory video itself was not promptly released, despite requests from Barrett and Wisconsin Gov. Scott Walker that this occur. It still has not been released. But we know now that public officials did not give an accurate account of what it shows.
We know that because, in mid-December, Milwaukee County District Attorney John Chisholm filed criminal charges against Dominique Heaggan-Brown, the former Milwaukee police officer who killed Smith. (Heaggan-Brown was fired over an alleged sexual assault shortly after the shooting.)
According to the criminal complaint charging the officer with first-degree reckless homicide, Smith held a gun as the officer fired his first shot. Smith, struck in the arm, pitched the gun over a fence and fell to the ground. The officer then fired a second, fatal shot to Smith’s chest.
“A review of the body camera video from (both officers at the scene) confirms that at the time of the second shot, Smith was unarmed and had his hands near his head,” the complaint says.
A 2014 state law governing investigations of police shootings requires that gathered materials be released if a decision is made not to file charges. The law is otherwise silent as to whether and when these materials are released.
Barrett has renewed his call for release, while Flynn has weighed in against this. Chisholm told me his office will not release this evidence prior to its use in a criminal proceeding.
In this case, I believe, it is already too late to restore confidence in the integrity of the process. Flynn’s representations about the video were at best misleading, and Barrett’s statements suggest he was misled, as was the public.
The whole point of outfitting police with cameras, at taxpayer expense, is to ensure truthfulness and enhance accountability. That did not happen here. And many more months may pass before the video is released.
Other jurisdictions have more enlightened policies. In Chicago, for instance, videos of police shootings are normallyreleased within 60 days, and posted online.
In the legislative session that begins in January, there will likely be renewed efforts to establish consistent state policies regarding police body cameras; a bill to do so in the last session went nowhere.
Now is the time, in the wake of this regrettable case, for the citizens of Wisconsin to insist that the video records they are paying for are not kept secret, or used to mislead them.
Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Bill Lueders is the group’s president.
Dear Council members and supporters,
This is to make you aware of developments regarding access to online court records, especially an open rules conference this morning (May 12) before the Wisconsin Supreme Court.
The court voted 5-2 to dismiss a rules petition from the State Bar of Wisconsin from 2009. But it did so with the understanding that the petition would be refiled, giving it a fresh opportunity to take this issue up again. Chief Justice Roggensack and Justices Prosser, Ziegler, Gableman and Rebecca Bradley voted in favor of dismissal, to pave the way for a fresh petition. Justices Abrahamson and Ann Walsh Bradley voted against.
That 2009 petition called on the court to significantly increase the availability of expungement of criminal cases, including the removal of information from WCCA, the state court's online records system.
Earlier this year, the court deadlocked 3-3 on a similar motion, with Justice Prosser voting against dismissal and Justice R. Bradley not participating . But Justice Prosser brought a motion for reconsideration and this time voted to dismiss, joined by R. Bradley, who said she had since been able to review petition-related materials.
The Council has long supported public access to online court records and fought against efforts to remove information. I need not recount the various arguments in favor of openness, which have also been sounded by business groups and the state Department of Justice, as in this filing. What is troubling about today's proceeding is the extent to which the justices, despite their differences, which at times were scarcely coherent, seemed to agree on the need for changes to remove certain information from the system.
Several justices spoke about the parade of citizens who came before the court in 2010 to attest to the various ways that WCCA, which everyone calls CCAP, has ruined their lives. None of these claims were subjected to even the most rudimentary investigation to determine their credibility, and, as I have reported in the past (as in here and here), at least some of these claims have been shown to be untrue.
The justices demonstrated a wholesale willingness to believe these unproven claims, as when Prosser said that repercussions to people on WCCA occur "often in situations where they were not involved and are found not guilty." That the records system would provide clear and irrefutable confirmation of a not guilty verdict apparently was not deemed relevant.
Rebecca Bradley noted that the actions called for in the petition seemed "quite legislative in nature," which would be a big no-no for a court dominated by people who vow to never legislate from the bench. But she voted to dismiss to entertain a new petition.
Even the two justices who voted no seemed open to restricting access. Ann Walsh Bradley said she opposed the motion to dismiss because "it is our responsibility to solve this problem."
In addition to the court's interest in revisiting this issue, possible restrictions to records access are being presented on three other fronts:
- The director of state courts is now pulling together a new WCCA oversight committee, to work out issues related to moving to all-electronic records-keeping in the state circuit court system. This committee was mentioned during today's hearing as another way in which perceived problems stemming from access to court records might be addressed. I have been asked to serve on this committee but do not know to what extent advocates for open records will be otherwise represented.
- A Legislative Council committee chaired by Sen. Alberta Darling will look at ways to reduce recidivism and remove impediments to ex-offender employment, which will likely include calls to shield online court records. The membership of this committee has not been announced.
- Finally, a bill to expand expunction introduced late in the current legislature session will almost certainly be reintroduced in 2017-18. The bill, AB 1005 in its current incarnation, would allow any person on the receiving end of a criminal charge that was dismissed or which led to a finding of not guilty, or was overturned on appeal, to petition a judge for expunction, including records removal. This would pertain to past cases without limits on when the charge was filed or the age of the person. O.J. Simpson would be eligible if he had been tried in this state.
So that's what's happening with regard to online court records. Current levels of access are very much at risk. Continued vigilance by advocates for open government is essential.
One of the most important court decisions in Wisconsin political history was argued largely in secret. The arguments were made in briefs that were heavily redacted or entirely shielded from public view. The evidence was hidden. Most of the litigants were anonymous.
The level of secrecy “is something I haven’t ever heard of happening in Wisconsin,” says David Schultz, a retired University of Wisconsin law professor who has watched the state Supreme Court for 40 years.
Unless the high court decides to unseal its files, the public will remain ignorant of the full facts and arguments it considered when it shut down the John Doe II investigation centered on Gov. Scott Walker’s campaign — known in court documents as “Unnamed Movant No. 1.”
Leaked and inadvertently unsealed records revealed that Walker raised large, undisclosed donations for ostensibly independent political groups, which in turn ran “issue ads” prior to the 2011 and 2012 Senate recall elections and the 2012 gubernatorial recall. These are unregulated, thinly veiled communications often intended to influence elections without expressly advocating for or against any candidate.
When two lawsuits aimed at killing the probe and a third filed by prosecutor Francis Schmitz attempting to save it made their way to the Supreme Court, the majority of justices agreed that most of the issues should be argued in secret to prevent “testimony which may be mistaken or untrue from becoming public.”
In July 2015, by a 4-2 vote, the court ended the probe, declaring that the conduct under investigation was not illegal and ordering that the evidence be returned to the subjects or destroyed. The court later amended its order to direct that the remaining evidence be turned over to the court. No one was ever charged.
But questions remain: What exactly did Walker do behind the scenes to fight the recalls? What evidence did prosecutors offer that two of the justices had conflicts of interest? Did prosecutors abuse their discretion in investigating activity that the subjects argued was protected political speech under the First Amendment?
And, importantly, did the court follow the law and precedent when it decided to shut down the investigation? Or did it, as Justice Shirley Abrahamson charged in her dissent, engage in a “blatant attempt to reach its desired result by whatever means necessary”?
In October, two nonprofit and nonpartisan groups — the Wisconsin Freedom of Information Council and the Wisconsin Center for Investigative Journalism — filed a public records request with Diane Fremgen, the clerk of the Supreme Court, asking that the case file be opened.
Fremgen denied the request, saying the court had directed her to maintain “certain filings” in the case under seal — even essential records such as motions and briefs filed with the court.
There are, we understand, concerns about releasing some exhibits attached to the court filings, on grounds that this evidence was illegally seized by prosecutors and should remain sealed. But Fremgen decided not to split those hairs, denying the entire request.
Abrahamson, for her part, has argued the case should be open, writing, “The public has a constitutional, statutory and common law right of access to judicial proceedings and judicial records.”
Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Dee J. Hall is the group’s secretary and managing editor of the Wisconsin Center for Investigative Journalism.