Wisconsin Freedom of Information Council

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Wisconsin Freedom of Information Council

Action Alert on Bill to Suppress Court Records in Wrongful Convictions

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The Wisconsin Freedom of Information Council is issuing an Action Alert on AB-460, a bill whose main purpose is to raise the compensation level for state victims of wrongful imprisonment. The bill unanimously passed the state Assembly on Tuesday.

Our concern is with how the bill would affect public access to case recordsmuch more significantly than has beeen publicly acknowledged. The bill as passed would not just require the removal of information on wrongful convictions from the state's online records system, or WCCA, as The Associated Press reported in October. It would actually completely shut off access to court records related to wrongful convictions.

According to the Legislative Reference Bureau analysis, "Under the bill, if a person's conviction for a crime is reversed, set aside, or vacated on grounds consistent with the person's innocence, and the person is ordered released from prison by a trial court, the court is required to grant the person, upon request [remedies including] sealing of all records related to his or her conviction."

The actual bill language calls for: "Sealing of all records related to the case. Records sealed under this section shall be accessible to the person but may not be available for public inspection or through the consolidated court automation program case management system."

This is a sweeping and radical requirement, one that will dramatically compromise the ability of media and the public to examine what went wrong in cases in which things are known to have gone terribly wrong.

The Wisconsin Freedom of Information Council opposes any reduction in public access to court records of wrongful convictions. As the Wisconsin State Journal noted in a Dec. 18 editorial , which assumed that the impact would be only to online court records:

"Rather than hiding its terrible mistakes from the public, the state should add information to electronic public records so it’s perfectly clear the individuals were victims, not criminals. It’s important for citizens to know their state justice system sometimes gets verdicts wrong."

Such concerns are greatly magnified when applied to all court records regarding wrongful convictions. The Council calls on advocates for open government to oppose this effort to protect the perpetrators of wrongful convictions from accountability. We urge that the Senate remove or amend this language, if and when it takes the bill up.

 

Online court records facing new threats

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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.

 

Wisconsin Freedom of Information Council names “Opee” winners

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FOR IMMEDIATE RELEASE

Contact: Bill Lueders (608) 669-4712

March 8, 2017

Wisconsin Freedom of Information Council names “Opee” winners

Two citizens, two journalists, one fired government worker and one small but gutsy Wisconsin newspaper are among the recipients of the 2016-17 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 12-18, recognize extraordinary achievement in the cause of open government. This is the 11th consecutive year that awards have been given.

“Now, more than ever, protecting Wisconsin’s traditions of open government depends on the courage and initiative of individuals,” said Bill Lueders, council president. “We saw a good deal of that in 2016.”

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 seventh annual Wisconsin Watchdog Awards Dinner in Madison on Thursday, March 30. 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 in six categories. The winners are:

Citizen Openness Award (“Copee”): Tie: John Krueger, Lance Fena

Krueger, an Appleton parent, joined with the Wisconsin Institute for Law & Liberty in suing

the Appleton Area School District for not letting him attend meetings of a committee formed in response to his curricula-related concerns. That case is now being decided by the state Supreme Court. Fena is the Milton School District resident

who asserted his right to make a video recording at a school board meeting, as the law expressly allows. The board not only backed down after initially adjourning to avoid being filmed, it subsequently began live-streaming its proceedings.

Media Openness Award (“Mopee”): New Richmond News

It took more than three years, but this small newspaper in St. Croix County won its case challenging wholesale records redactions by law enforcement agencies all around the state. A state appeals court in May affirmed that local officials were overreacting to a 2012 federal court ruling in the amount of driver-license-related information they have been withholding. Issues remain but the New Richmond News brought a measure of clarity to what had been chaos.

Political Openness Award (“Popee”): Cory Mason

This Democratic lawmaker from Racine continues his efforts to end the ability of legislative party caucuses to meet in secret, but revelations that GOP lawmakers in 2011 used this secrecy to gleefully attack voting rights make the issue more urgent than ever. Mason also broke ranks with some members of his party last year to make the Wisconsin Interscholastic Athletic Association subject to state openness laws, and before that opposed efforts to reduce transparency of campaign donors and the attempt to gut the open records law through the state budget.

Open Records Scoop of the Year: Tie: Katelyn Ferral, Patrick Marley

In what was a banner year for reporting that drew on public records, we picked two major projects involving threats to vulnerable populations. Ferral, of The Capital Times, exposed the dismal conditions at a state veterans facility in King, Wisconsin; the Legislature ordered an audit, the federal government issued citations, and the head of the state’s Department of Veterans Affairs resigned. Marley and other Milwaukee Journal Sentinel reporters documented shocking abuses at two state juvenile prisons; the state has increased training and oversight, and federal authorities are looking into possible indictments and civil rights prosecutions.

Whistleblower of the Year (“Whoopee”): Ronald Klym

This federal employee, a long-time senior legal assistant for the administrative law judges who grant or deny Social Security benefits, blew the whistle on what Watchdog.org, which reported his story, called “incompetence, misconduct and long case delays” at a Milwaukee disability office. Klym was allegedly subjected to additional work assignments, unreasonable deadlines and unjustified suspensions; in August, he was fired . “Absolutely. I am being punished because I am a whistleblower,” he said at the time. Now he’s being honored for it.

No Friend of Openness (“Nopee”): The Wisconsin Department of Corrections

Among an unfortunately broad array of candidates, no other state agency has compiled such a bleak record on openness. The Milwaukee Journal Sentinel in June catalogued an array of DOC denials and delays, including those concerning the state’s troubled juvenile prisons. In September, the agency proceeded with a plan to immediately destroy training videos after earlier spiking plans to do so. And DOC Secretary Ed Wall was fired for writing to another state official at home with the express goal of avoiding the open records law. The DOC’s awesome power to deprive people of liberty must be matched with a strong commitment to transparency. We’re waiting.

- 30 -

 

December: Open the door to open data

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Scott Resnick, a former Madison alderperson, is proud of the work he’s done to advance the cause of open data. In 2012, the city enacted what he says was only the second open data ordinance in the country.

Open data is the practice of releasing huge quantities of public information in electronic form so it can be put to other public purposes. Governments, citizens, companies or others may then discover ways to use the data to create technological applications or to identify public issues that should be addressed.

While the concept sounds tech-heavy, the potential applications of open data span any number of real-world applications. For example, in Madison, Resnick says, a “bus radar” application designed by a university student allows would-be riders to track the location of a bus in real time, making it easier to avoid missing the bus.

The city of Madison’s open data initiative also led to development of an “adopt a fire hydrant” app that encourages citizens to locate and shovel out fire hydrants nearest them, Resnick says.

Nationally, the open data movement has increased access to geographic and weather data. Another “hot topic” in open data, Resnick says, is tracking police-related shootings and ensuring that data is standardized so that meaningful comparisons can be made.

Open data is popular among a new generation of virtual volunteers, including what Resnick refers to as “civic hacking groups.” Businesses are also prolific users. Resnick, who serves as chief operating officer of a private company, sees both as “a worthy use of government resources.”

Some companies use the data to improve public health, Resnick adds, noting that a private California-based company has developed an application that works with local fire departments to locate the nearest hospital for individuals in need of CPR. While the company is for-profit, Resnick notes, “their goal is to save lives.”

And while some companies may offer services derived from open data for a charge, Resnick says that when those companies compete with others who offer the services for free, “almost always, the free one has won out.”

Critics complain that open data only showcases data that government agencies choose to share, not more controversial records and information. But Resnick calls open data a “first step” that reinforces positive attitudes within government toward publicly releasing data. (He stresses that government should be careful to consider individuals’ privacy when releasing data.)

Other Wisconsin communities, including Milwaukee, are taking steps toward open data initiatives, and there is in interest on the state level, Resnick says. Many other states have legislation promoting open data.

With so much broad-based support for open data, those who seek to promote transparency in government need to be part of the conversation as it moves forward.

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, the Council’s co-vice president, is an attorney with Schott, Bublitz & Engel of Brookfield.

 

October: Are officials giving out too much information?

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The nonprofit group I belong to is called the Wisconsin Freedom of Information Council. Our mission is to protect and expand access to public records.

Usually this entails pushing state and local government officials to be as open as possible. But lately, a number of developments raise a peculiar concern: Are officials being too open?

In June, the Wisconsin Supreme Court ruled in Teague v. Schimel that the state Department of Justice defamed a Milwaukee man by releasing information on offenses committed by a relative who used his name as an alias, without making this clear. The majority felt the agency needed to provide more complete information, in the interest of accuracy. No problem. More information is good.

But litigation has also been brought against public officials for releasing information that is indisputably correct. A woman who accused former UW basketball coach Bo Ryan of misconduct (an internal probe found no wrongdoing) has sued university officials for allegedly revealing her identity, calling this “unreasonable, intentional, reckless, malicious, willful, arbitrary, capricious and/or highly offensive to a reasonable person.” The case is pending in federal court.

And a former Green Bay police officer is suing the city of Green Bay for fulfilling a records request from a newspaper regarding the circumstances of his departure. He says the release violated a confidentiality agreement and caused him embarrassment, monetary losses and emotional harm.

Courts have recognized a strong public interest in knowing more about the individuals who patrol our streets, manage our tax dollars, teach our children, and represent us in government. This interest has been deemed more important than the privacy rights of individual public employees.

Then there are those who want to restrict access to data on the state’s online court records system. They say no one should be able to see that they were charged with a crime if they weren’t convicted; some folks don’t even want people to know if they were. A state committee has recommended reducing the display times for dismissed cases, which would remove thousands of files from the site. That’s a troublesome precedent—responding to a perceived problem by taking information away.

Information compiled by government at taxpayer expense belongs to everyone—even if that is at times unwelcome.

Recently, the state Justice Department began compiling a "snapshot" of pending records requests on its website, updated weekly. It’s even begun posting records released in response to requests of particular public interest.

Such disclosure is painful for reporters who want to protect their ability to break stories. Now their competitors can track what matters they are looking into and potentially obtain key documents the same time as they do. A similar proposal in Scotland was decried as an attack on the press.

The Wisconsin Freedom of Information Council discussed the Justice Department’s new moves toward transparency at its last meeting and agreed to support the changes, even though it may mean an occasional blown scoop. We stood with our values if not necessarily our interests.

That’s the thing about information: sometimes it hurts. A free society has to accept that.

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, managing editor of The Progressive magazine, is the council’s president.

 
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