Open Government Problem Areas
As identified by the Wisconsin Freedom of Information Council (Revised March 2016)
1. Long waits. The Open Records Law states that requested records must be provided “as soon as practicable and without delay.” It adds that providing access to information “is declared to be … an integral part of the routine duties of [public] officers and employees.” But custodians often put off requests until it’s convenient, even in situations where timeliness is imperative.
Best practice: Custodians should promptly provide access to requested records. The state Attorney General advises that simple requests should be answered within ten working days. But many requests can be handled sooner.
2. High costs. The Open Records Law allows custodians to charge only the “actual, necessary and direct cost” of reproducing records, and sometimes (when more than $50) the cost of location. Yet requesters are sometimes asked to pay exorbitant amounts – hundreds and even thousands of dollars – because of how broadly records custodians interpret the law or the request. The problem was mitigated somewhat by a 2012 state Supreme Court decision, Milwaukee Journal Sentinel vs. the City of Milwaukee, which held that custodians cannot charge for the time they spend reviewing records and deciding what information to redact.
Best practice: Records custodians should charge between 10 and 25 cents per page or waive the fee altogether, as the law allows at 19.35(3)(e). Location fees for staff time should be based on the lowest-paid employee who can reasonably do the work. Custodians should ask before charging high fees and whether a request can be narrowed.
3. Extra-legal interpretations. Custodians sometimes advance fresh interpretations of statutes or rules to justify withholding records, even if no statute or court case supports the interpretation. This happened in 2015, when the state Department of Administration began claiming the right to withhold records produced while working to prepare a state budget bill, and again when Walker administration officials began claiming that certain records fell under the a new definition of “transitory records” (later rescinded) and did not need to be retained.
Best practice: Custodians should obey the law as written and respect the right of citizens to see what factors go into the decision-making process.
4. Improper denials and preconditions. Requests may be denied under the law, but even denials must follow proper procedure. Custodians have denied requests without a lawful reason, denied an entire request when only a portion may be withheld, and declined to provide written reasons for denying a written request or explaining what was withheld. Also, custodians sometimes demand information from the requester as a condition of releasing information: The Open Records Law doesn’t require requesters to identify themselves, or state a reason the record is sought.
Best practice: Ensure denials are authorized under the law; release disclosable portions when only a portion of a response must remain confidential; and completely describe the reasons for denying any part of a request.
5. Attorney-client privilege. Public officials frequently claim they have the right to close meetings or deny access simply because their attorneys are involved. This has the clear potential for abuse. In a 2013 ruling, Juneau County Star-Times v. Juneau County, the Wisconsin Supreme Court rejected claims that attorney billing statements contained information subject to attorney-client privilege.
Best practice: The exemption for attorney-client privilege should be construed as narrowly as possible, applied only when access would compromise a public body’s entitlement to receive sensitive legal advice.
6. Draft status. The Open Records Law contains an exemption for drafts, which it defines as records “prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working.” Despite the clarity of this language, and case law (Fox v. Bock) and an AG opinion (77 Atty. Gen. 100) affirming it, custodians sometimes claim that draft status extends to any form of a document short of the final version they deem fit for release.
Best practice: Once a document is shown to anyone besides the originator or a person working on his or her behalf, it is no longer a draft. Records custodians should also release early versions of documents, to show how they were changed as the result of review, reconsideration or outside pressure.
7. Retention requirements are unclear or too loose. The open records law is only worthwhile if there are records to request. Yet lawmakers have entirely exempted themselves from any record retention requirements, and rules for state and local government are sometimes unclear or lack consequences. A state board responsible for setting minimum retention periods tried to expand the definition of “transitory records”—those that need not be retained at all—until a public backlash forced it to reverse the decision.
Best practice: Retain all records, and consult the public records board when in doubt.
8. E-mail and other electronic records. The Open Records Law specifically includes “electromagnetic information” among its definition of record, and court rulings have affirmed that e-mail and other electronic records must be released on request. But there is little clarity in law or practice as to how long these records must be kept, what systems ought to be in place for storing and retrieving them, and what costs can be fairly assessed for retrieval and processing, and whether and when e-mail communications may violate the Open Meetings Law. The problem has become even more complex with the advent of social media.
Best practice: Unless and until the law is clarified, custodians should treat electronic records like paper records when it comes to storage and retrieval.
9. Privacy protections. Privacy claims are sometimes used to justify withholding records of public interest. Court records in particular often contain sensitive information, yet their availability is usually justified by the serious civil or criminal matters being litigated. In Wisconsin, an overzealous interpretation of a federal court ruling regarding the federal Drivers Privacy Protections Act has prompted a wholesale shutdown of access to records once routinely provided.
Best practice: Legitimately private information should not be used as a justification for withholding an entire document when the privacy-related information can simply be redacted. The public has a right to see what government officials are collecting, even if it concerns individuals.
10. Rights without remedies. The open records law says that when custodians deny or delay providing records, requesters can go to court and obtain their attorneys' fees if they win. Yet court decisions have narrowed the circumstances under which requesters are “prevailing parties.” One 2015 decision, Journal Times v. City of Racine, even said that when a custodian misleads a requester about the existence of a record, a plaintiff can’t win if it turns out there is no responsive record.
Best practice: Be upfront with requesters when the records they seek don’t exist, and don't delay responses. Ultimately, the Legislature may need to restore some enforcement rights to requesters.
11. Police and prosecution records. In a 1991 decision, Richards v. Foust, the Wisconsin Supreme Court decided that prosecutors’ files are exempt from the Open Records Law, a blow to openness and accountability. But a 2008 appellate court ruling, Portage Daily Register v. Columbia County Sheriff’s Department, affirmed that other law enforcement agencies must still apply a separate balancing test. At times, the balance still weighs too readily against disclosure.
Best practice: Police and prosecutors should restrict access only to records that compromise their ability to prosecute a case or the defendant’s right to a fair outcome. And all records should be presumed public, subject to the balancing test, at the conclusion of a case.
12. Closed meetings. State law says public bodies must meet in the open except in certain narrowly prescribed situations, for instance to discuss certain personnel matters or ongoing negotiations in a competitive process. But frequently, members of bodies go into closed session simply because they believe they will be able to speak more candidly that way.
Best practice: Meetings of public bodies should almost always be open to the public. Exemptions to this rule should be construed as narrowly as possible, and detailed notice of closed sessions should always be provided. Governmental bodies should record their closed sessions so any claims of an improper closed session can be objectively reviewed.
13. Vague agenda items. In 2003, the then-state Attorney General held that a vote taken by the UW Board of Regents on a vaguely noticed agenda item was illegal. And a 2007 Supreme Court decision, Buswell v. Tomah, held that notices must contain reasonably detailed information about the subjects up for discussion, especially on topics of known public interest. Yet some governmental bodies persist in posting vague agenda items.
Best practice: Public bodies should specifically reference all items of business they intend to take up, so that citizens with an interest in these areas can attend. Vague subject headings like “Mayor’s Report” should be avoided in favor of more precise agenda items, including for closed session meetings.
14. Claims of abuse: An increasingly common argument is that, if information is sometimes abused, it should not be available. This comes up in battles over Wisconsin Circuit Court Access, the state’s online court records system. Claims that data on this site is misinterpreted and misused are propelling legislative efforts to curtail what records are available, and who can see them.
Best practice: If there is evidence that public records are being used to illegally discriminate against others in employment, then prosecutions should ensue, not crackdowns of the ability to obtain public information.