Wisconsin Freedom of Information Council

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Open Government Problem Areas

As identified by the Wisconsin Freedom of Information Council (Revised August 2013)

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. 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.

3. 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). And they should suggest ways that over-broad requests can be tailored more narrowly to provide relevant records at a reasonable cost.

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. 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. 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.

Best practice: Unless and until the law is clarified, custodians should treat electronic records like paper records when it comes to storage and retrieval.

6. 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.

7. 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 Sheriffs 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.

8. Quasi-governmental entities. Some publicly anointed and funded agencies consider themselves exempt from the state’s Open Records and Open Meetings Laws. But a 2008 state Supreme Court decision, State of Wisconsin v. Beaver Dam Area Development Corporation, concluded that publicly funded entities are subject to openness laws.
Best practice: Entities who think they are private should review the Beaver Dam decision and closely consider their status. Generally, entities established or largely funded by government are probably subject to the state’s openness laws.

9. Closed meetings. State law says public bodies must meet in the open except in certain narrowly proscribed 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.

10. 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, especially for closed session meetings.

11. 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 2012 case, Juneau County Star-Times v. Juneau County, the Wisconsin Supreme Court rejected claims that 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.

12. Medical privacy. The Council agrees that individuals have the right to privacy regarding their medical records and personal health histories. Yet we are concerned that state records custodians over-apply medical privacy rules under the federal Health Insurance Portability and Accountability Act (HIPAA), blocking access to health information that does not compromise personal medical privacy.

Best practice: Records custodians subject to HIPAA should not prevent the release of information about matters of public health, so long as individuals are not specifically identified.

13. 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.