Wisconsin, it's said, had the nation's first state law mandating public access to government records. It was passed in 1849, a year after Wisconsin entered the union. The law has undergone two subsequent reworkings, the last in 1981. But in truth, it never stops changing.
Amendments are passed, practices change, and court rulings redefine the law's interpretation.
That's why the state Justice Department, charged with interpreting the law, periodically updates its Public Records Compliance Outline, a comprehensive guide for records custodians and users. The last such revision was announced in September. The new guide, available here, replaces one last updated in 2010. It includes new language meant to reflect recent court rulings.
(There are no immediate plans to update the office's companion open meetings compliance guide, said department spokeswoman Dana Brueck, since "there haven't been any significant changes in the law.")
In June, in Milwaukee Journal Sentinel v. City of Milwaukee, the Wisconsin Supreme Court unanimously ruled that the records statute does not permit custodians to charge for the time they spend reviewing records and deciding what information can legitimately be withheld. The court noted that the law only allows charges for specified costs, to locate, reproduce and send records.
The revised compliance guide states: "An authority may not charge a requester for the costs of deleting, or 'redacting,' nondisclosable information included in responsive records."
Previously, the Justice Department, headed by Attorney General J.B. Van Hollen, advised against these charges, and even backed the Journal Sentinel's position in court. But this advice went unheeded by custodians including Gov. Scott Walker, who asserted the right to charge for redaction. That language has since been stripped from his office's records policy.
The new records guide also seeks to clarify the responsibility of custodians to provide records produced by contractors hired to perform government functions. It cites a 2011 appellate court decision, Juneau Co. Star-Times v. Juneau Co., which stated that custodians must disclose any record “collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority.”
Interestingly, that decision is now under review by the Wisconsin Supreme Court. At issue is a dispute over whether the records law applies to records produced by a law firm hired by an insurance company that represents Juneau County.
In oral arguments held Sept. 5, Bryan Kleinmaier, the county's attorney, argued that only contractors' records "generated under a contract to which the county is a party" are subject to disclosure. But attorney Christa Westerberg, representing the Juneau County Star-Times, said the records should be released because they were collected by the insurer, as part of its representation of the county.
Westerberg is vice president of the Wisconsin Freedom of Information Council, which joined the Wisconsin Newspaper Association and Wisconsin Broadcasters Association in backing the Star-Times' position in the case.
During these arguments, repeated references were made to the position of the Attorney General's office. The compliance guide, in both the earlier and revised versions, states that access does not extend to subcontractor records "unless the information is required by or provided to the authority under the general contract to which the authority is a party."
But the meaning of this language, and its application to the case under review, is in dispute. Once the courts rule, the rule book may need further tweaking.
Your Right to Know is a monthly column produced by the Wisconsin Freedom of Information Council, a nonprofit group dedicated to open government. Bill Lueders, a reporter at the Wisconsin Center for Investigative Journalism, is the group's president.