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A legislative wish-list for open government

Possible changes in law or policy to increase transparency, as identified by the Wisconsin Freedom of Information Council

Updated April 2014

 

Recording of closed meetings

Currently, there is no way to know whether public bodies are going into closed session for legitimate reasons. The council favors a statutory requirement that closed meetings be recorded on audio or video, allowing for in camera review if their legality is challenged. A similar statute is in place in other states, including Iowa and Illinois. No legislation to accomplish this has been introduced in Wisconsin.

End loophole in finalist disclosure law

Wisconsin’s open records law requires, at 19.346(7), that public bodies disclose the names of finalists, typically at least five, for any nonclassified state position, or for any local public office. But this provision does not specify when these names must be released, prompting some authorities to wait until after a selection is made. This is a loophole that should be plugged.

Make state lawmakers subject to state records retention rules

Current state law prescribes mandatory minimum retention rules for all state and local government officials, except members of the Legislature. A city engineer in a small city must preserve correspondence but a state lawmaker can destroy it at will. The law should be changed to end this exception, as one lawmaker attempted to do in 2011. In the meantime, lawmakers should be challenged to voluntarily retain relevant records.

Make the Legislature subject to the state’s Open Meetings Law

The state Supreme Court, in its 2011 ruling Ozanne v. Fitzgerald, decided that the Legislature’s adherence to the Open Meetings Law is not subject to judicial review, effectively exempting the Legislature from the law. The council supports legislation, recently introduced as 2013 Assembly Resolution 17 and Assembly Joint Resolutions 61 and 62, to make the Legislature expressly subject to the law.

Eliminate open meetings exemption for legislative caucuses

Efforts to end the ability of legislators to meet as a caucus in secret receive occasional media support, but legislative proposals to accomplish it, including 2013 AB 104, have gone nowhere.

Mandatory disclosure by certain users of online court records

Since it went operational in April 1999, the state’s online court records system, commonly called CCAP, has faced repeated legislative attempts to restrict what information is available. A common charge is that landlords and employees are using the system to unfairly discriminate against applicants. The council supports a provision, introduced as part of a failed 2013 bill, AB 253, to require users who deny applicants housing, employment or accommodations to applicants based on information in the system to disclose this.

End the exemption for prosecutor records

A 1991 Wisconsin Supreme Court ruling declared prosecution files exempt from the public records law. In 2005 then-Gov. Jim Doyle, a former state Attorney General, announced his support for ending this exemption, but no legislation to accomplish this has been introduced.

Allow greater Government Accountability Board openness

A draft proposal introduced in 2011 would have given the GAB more leeway to make its findings public. The board found that the secrecy built into its original rules had “unintended consequences, in some instances making it difficult for the public to access or understand what has happened at the conclusions of these investigations.” The proposal was never assigned a bill number.

Update the location cost threshold

When the state’s Open Records Law passed in 1981, it stated that custodians could charge only for location fees of $50 or more. The clear legislative intent was to give requesters an initial $50 of free location effort, reserving this charge for larger requests. Adjusted for inflation, $50 in 1981 would be more than $125 today. The council supports updating this amount; no legislation to accomplish this has been introduced.

Modernization proposals:

1) Ban electronic chatter — emails, text messages and instant messages — by members of deliberative bodies during meetings, if these concern the substance of the issues under discussion. (This would still allow non-substantive communications, and purely personal communications.)

2) Require that when public officials use email or other electronic communication methods to conduct government business, they do so using official government accounts, when available, not personal accounts, to facilitate the archiving of these communications.

3) Establish consistent rules for the retention of electronic communications. Require that all electronic communications involving government business be preserved for public inspection for the same statutory retention period as paper communications — that is, not less than seven years.

4) Establish that records custodians can charge only for the "actual, necessary and direct" cost of reproducing records in electronic form, not the corresponding fees for providing paper records.