Wisconsin Freedom of Information Council

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Wisconsin Freedom of Information Council

Action Alert on Legislature's Attack on Open Records Law

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The Wisconsin Freedom of Information Council is issuing an emergency action alert in response to the Joint Finance Committee’s shocking assault on the state’s long and proud tradition of open government.

This cowardly action, passed by the Committee on July 2 just hours after its introduction, is part of an omnibus motion stuck into the state budget. The committee chairs have refused to say which lawmakers asked for these changes, which will effectively free the state Legislature from the state’s Open Records Law.

The changes would exempt legislative communications from the law; shield from release all “deliberative materials” created for the purpose of making law or public policy (including opinions, analyses and briefings prepared at public expense); shut down public access to all records created in the process of drafting legislation; and specify that the Legislature can freely exempt any record from disclosure simply by passing a rule or policy.

These radical and sweeping changes represent a full-frontal attack on Wisconsin’s history of open government. They are clearly intended to block the public from discovering what factors drive the official actions of government, especially the Legislature, and will inevitably lead to abuse, malfeasance and corruption.

Should they become law, these changes would free the Legislature of the obligations of transparency in place for all other state and local governmental agencies. They will spare lawmakers from the burden of accountability to the people who elect them and pay their salaries. They will shield from public view the collusions of lawmakers with special interest groups, lobbyists and campaign donors.

In one 2014 case, bill drafting records exposed the involvement of a wealthy campaign donor in drafting a bill that would have reduced his own child-support obligation. The changes inserted into the budget bill would keep these records secret.

Bill drafting records have long been understood to be public records, and are now routinely posted online. The change inserted into the budget would make release of these records illegal.

In addition, the omnibus bill cuts away at public access to information about criminal charges in the state’s online court records system. It would allow charges filed against some individuals to “disappear” from this archive. While not as sweeping as some past failed efforts to remove records from this system, it is being done with virtually no public discussion.

The records these changes would seal off have, on countless past occasions, been used to expose wrongdoing and provide essential information on the workings of government. We should be pointing this out, as well as reminding people of the very strong proclamations in favor of transparency that have been made by our elected officials, including Gov. Scott Walker, who as a candidate said that the state Legislature needs to be more transparent.

And all of these changes are strictly policy matters, which have absolutely no business being part of a budget bill.

The Council opposes these changes in the strongest possible terms. We call on our members and supporters, and the public at large, to rise in opposition to this attack on our state’s tradition of open and honest government.

Note: Members of the Legislature opposed to these changes will be holding a press conference on Monday, July 6, in the Assembly Parlor, state Capitol, 1 p.m.

 

July: Fight lawmaker's shocking attack on open government

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On July 2, the Legislature’s Joint Finance Committee unleashed a shocking assault on the state’s long and proud tradition of open government.

It happened at night, on the eve of a holiday weekend, just a few hours after the proposal was first unveiled. No one has taken credit for it. Committee co-chair Sen. Alberta Darling, R-River Hills, literally walked away from a reporter asking whose idea it was.

The committee’s cowardly action, which passed on a 12-4 party line vote with Republicans in the majority, was part of an omnibus motion stuck into the state budget. It will effectively end the Legislature’s need to comply with the state’s Open Records Law.

The changes exempt legislative communications from the law; shield from release all “deliberative materials” created for the purpose of making law or public policy (including opinions, analyses and briefings prepared at public expense); shut down public access to all records created in the process of drafting legislation; and specify that the Legislature can freely exempt any record from disclosure simply by passing a rule or policy.

These radical and sweeping changes represent a full-frontal attack on Wisconsin’s history of open government. They are clearly intended to block the public from discovering what factors drive the official actions of government, especially the Legislature, and will inevitably lead to abuse, malfeasance and corruption.

Should they become law, these changes would free the Legislature of the obligations of transparency in place for all other state and local governmental agencies. They will spare lawmakers from the burden of accountability to the people who elect them and pay their salaries. They will shield from public view the collusions of lawmakers with special interest groups, lobbyists and campaign donors.

In one 2014 case, bill drafting records exposed the involvement of a wealthy campaign donor in drafting a bill that would have reduced his own child-support obligation. The changes inserted into the budget bill would keep these records secret.

Bill drafting records have long been understood to be public records, and are now routinely posted online. The change inserted into the budget would make release of these records illegal.

In addition, the omnibus bill cuts away at public access to information about criminal charges in the state’s online court records system. It would allow charges filed against some individuals to “disappear” from this archive. While not as sweeping as some past failed efforts to remove records from this system, it is being done with virtually no public discussion.

The records these changes would seal off have, on countless past occasions, been used to expose wrongdoing and provide essential information on the workings of government. We should be pointing this out, as well as reminding people of the very strong proclamations in favor of transparency that have been made by our elected officials, including Gov. Scott Walker, who as a candidate said that the state Legislature needs to be more transparent.

And all of these changes are strictly policy matters, which have absolutely no business being part of a budget bill.

The people of Wisconsin need to rise in opposition to this attack on our state’s tradition of open and honest government. The future integrity of our state depends on it.

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 is the group’s president.

 

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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