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.
Over the July 4 weekend in 2015, members of the state Legislature sparked a public uproar by proposing last-minute changes to the state budget bill that would have created a “deliberative process” exception to Wisconsin’s long-cherished public records law. Government transparency advocates condemned the move, and the changes were hastily rescinded.
But the effort to shield records that are produced while crafting law and policy did not end there. The administration of Gov. Scott Walker continued to assert its ability to withhold these records under existing law.
In May 2015, the Center for Media and Democracy sued Walker for refusing a request for documents relating to prior failed legislation that sought to rewrite the University of Wisconsin’s mission statement, known as “the Wisconsin Idea.” Walker’s attorneys cited “deliberative process” and other reasons for denying access.
Shortly afterward, Madison attorney Katy Lounsbury filed suit along with her husband, Madison journalist Jud Lounsbury, and The Progressive magazine in response to a similar denial. The two cases were consolidated; I represented the Lounsburys in their action.
This May, Dane County Judge Amy Smith issued a decision rejecting the deliberative process defense as inconsistent with Wisconsin law. Friends of open government celebrated the ruling, which the state did not appeal, as a deterrent to other public officials who might try to claim that this loophole exists. But there still could be efforts to assert this privilege in the courts or through legislation.
The phrase “deliberate process” borrows from the terminology employed by federal courts when applying the federal Freedom of Information Act, the U.S. government’s public records legislation. Congress incorporated the “deliberative process” privilege in FOIA through what is known as Exemption 5 to that law.
Exemption 5 allows the federal officials to withhold certain “interagency” or “intra-agency” memoranda from the reach of FOIA requests. Courts have interpreted the exemption as permitting federal officials to deny public access to agency employees’ file memos, letters from employees of one agency to those of another, and consultants’ reports prepared for an agency.
These sorts of records are all routinely available under Wisconsin’s public records law.
In fact, as we noted in the lawsuits, the drafters of Wisconsin’s current public records law considered but rejected provisions similar to Exemption 5. That decision is consistent with the reputation that Wisconsin’s public records law enjoys as one of the nation’s broadest.
While the federal approach relies on a purported need for agencies to operate in secrecy in order to produce the best final work product, Wisconsin’s approach embodies an opposite philosophy—that outside scrutiny improves the process. As Judge Smith noted in her ruling, the effort to assert a deliberative process privilege “flies in the face of long-held policies underlying Wisconsin's open records law.”
Regardless of whether the next attempt to introduce it comes by judicial or legislative cover, a deliberative process privilege would allow agencies and state officials to keep us in the dark regarding the identities and motivations of those who draft the rules. From the thunder of the initial rally against deliberative process in July 2015 to the comparatively subdued but welcome reception for Judge Smith’s decision, that is the takeaway that we cannot forget.
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.
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.
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.