Wisconsin Freedom of Information Council

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Wisconsin Freedom of Information Council

March: Don't let the UW hide research records

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Deep in the bowels of Gov. Scott Walker’s proposed 2015-17 budget is language to exempt research done by the University of Wisconsin System from the state’s open records law, unless it is published or patented.

This blanket exemption would spare the UW from needing a good reason to deny access to these records, as current law requires. Instead, universities could categorically spurn inquiries from citizens, media and even lawmakers looking into controversial research, potential threats to public safety, conflicts of interest or how tax dollars are spent.

Two prior attempts to exempt records of campus research, in 2013 and 2014, failed because Republican lawmakers refused to go along. “It clearly needs more discussion,” a UW lobbyist conceded after the second failed attempt. But now Walker has revived the idea in his budget, with little to no discussion having taken place.

A university official recently told The Associated Press that the UW merely seeks “a more level playing field” with states that restrict access to such records. This prompted editorial writer Ernst-Ulrich Franzen of the Milwaukee Journal Sentinel to ask two excellent questions:

“But can the university offer examples of where research has been hurt by the current rules? Or examples of a loss of funding because they were unable to compete because of the current rules?”

I forwarded those questions to UW System officials. Bill Barker, who works in the UW-Madison’s Office of the Vice Chancellor for Research and Graduate Education, provided a detailed response.

Barker listed 24 other states that restrict access to records of university research. But UW officials, he acknowledged, “cannot point to a specific instance of lost intellectual property or misappropriated research” due to Wisconsin’s records law.

However, he said, “Given the hypercompetitive environment in which we compete for scarce research resources, we feel a proactive and conservative strategy is appropriate.” Why wait for something bad to happen when you can crack down on information preemptively?

Barker also cited the “very significant burden” of records law compliance. He said one recent request from USA Today for all open and closed session minutes for the UW-Madison’s Institutional Biosafety Committee “consumed much of one of our employee’s time for almost three-and-a-half months” because of the need to painstakingly redact certain information.

I checked in with USA Today reporter Nick Penzenstadler, who made this request. He said the paper obtained two years’ worth of minutes but noted that federal rules require these to be made public on request. In other words, changing state law would not alleviate the UW’s burden in this instance — a statement Barker, given a chance, did not refute.

Moreover, federal authorities advise there are “multiple ways to make minutes available that are relatively unburdensome to both the institution and the requester.” And in fact, Penzenstadler said, “other universities keep these records in a way so they can be posted online without months of redactions.”

Among the records at issue in USA Today’s request were those regarding a UW-Madison study on deadly pathogens that has drawn international concern about potential dangers to the public.

But Barker said the UW considers the volume of requests it receives for such records to be “an unfair assault on academic freedom which we cannot condone or support.” He specifically mentioned “lethal pathogens,” along with records of research involving animals, stem cells and climate change, as the kind of requests for which the UW sought relief.

Such disregard for Wisconsin’s tradition of open government, and for the public’s right to know, does not belong in the bowels of the state budget. The bowels, maybe, but not the budget.

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, a reporter with the Wisconsin Center for Investigative Journalism, is the group's president.

 

Action alert on proposed exemption for records of UW research

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The Wisconsin Freedom of Information Council is issuing an action alert regarding Gov. Scott Walker's proposal to exempt records of University of Wisconsin research from the state's Open Records Law. The governor's budget bill, SB21, on P. 181-182, would create this new section of the statute:

19.36 (14) UNIVERSITY OF WISCONSIN SYSTEM AUTHORITY. Any authority may withhold from access under s. 19.35 (1) information in a record that is produced or collected by or for the faculty or staff employed by the University of Wisconsin System Authority in the conduct of, or as a result of, study or research on a commercial, scientific, or technical subject, whether sponsored by the University of Wisconsin System Authority alone or in conjunction with an authority or a private person, until that information is publicly disseminated or patented.

This would create a blanket exemption for all records of UW research that university officials choose to not disseminate or patent. It would be invoked to prevent public access to records regarding controversial research. It would keep the public from knowing details about the conduct of publicly funded institutions and allow abuses to go undetected.

This is the third attempt in recent years to shut off public access to records of university research.

The first prior attempt occurred in May 2013. University officials asked the Legislature's Joint Finance Committee to insert language into the budget to shut down access to records of UW-Madison research. They were not successful. A memo to lawmakers circulated as part of this effort specifically cited the UW's desire to avoid having to respond to requests for research involving the use of animals, an area of study that even defenders believe raises ethical questions that warrant public awareness and discussion.
Then, in February 2014, lawmakers introduced AB 729 just days before holding a public hearing on same. The Legislative Reference Bureau's analysis said the bill would exempt "information, data, or records produced or collected by or for faculty or staff of [UW System] institutions as a result of study or research on commercial, scientific, or technical subjects. The exemption applies whether or not the study or research is sponsored by the institution alone or in conjunction with a governmental body or private concern. The exemption expires when the information is publicly released, published, or patented."

State Rep. Steve Nass, then chairman of the Assembly Committee on Colleges and Universities, now a member of the state Senate, objected to this change. It was removed from the bill prior to the hearing.

Legislation deemed dead on arrival by the Joint Finance Committee and an Assembly committee should not find new life in the governor's budget. Any such change should be deliberated as stand-alone legislation, on its merits. Or lack thereof.
Current law already allows state universities, like any state or local public authority, to deny access to records if they can make the case that the harm from release outweighs the presumption that the public is entitled to access. This bill would eviscerate that standard for the University of Wisconsin. No longer would our universities need a good reason, or any reason, to deny access.

We hope that advocates for open government in Wisconsin will unite in opposition to this bad idea.
 

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.

 
 

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.

 
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