Open Government Problem Areas
As identified by the Wisconsin Freedom of Information Council – October 2009
1. High costs. The Open Records Law states that custodians may charge only the “actual, necessary and direct cost” of reproducing records, and sometimes (when more than $50) the cost of locating records. Yet requesters are sometimes asked to pay exorbitant amounts – hundreds and even thousands of dollars. Some custodians have sought to charge for reviewing records and deciding what information to redact, a practice the state Attorney General’s Office has deemed improper. Other custodians inflate costs by interpreting the request over-broadly.
Best practice: Records custodians who charge between 10 and 25 cents per page or who waive the fee altogether, as the law allows at 19.35(3)(e). As for other costs, custodians should remember the law’s admonition that providing access to records “is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees.”
2. E-mail 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 whether and when e-mail communications may violate the Open Meetings Law.
Best practice: E-mails and other electronic records should be maintained as long as practically possible, and each public body ought to strive for efficient systems for storage and recovery. Officials should be reminded that e-mails, including government-related communications on their home computers or personal email accounts, are public records. Hopefully, the Legislature, courts, or Attorney General’s office will provide clearer standards and direction in the near future.
3. Delays. 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 prompt access is imperative.
Best practice: Custodians should promptly provide access to requested records. The state Attorney General suggests that requests should be answered within ten working days. But many requests can be answered much more promptly than that.
4. Police and prosecution records. In a 1991 decision, Foust v. Richards, the Wisconsin Supreme Court declared 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 the release of information.
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.
5. 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.” But 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.
6. 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 practices: Entities who think they are private should review the Beaver Dam decision and closely consider their status. Generally, if an entity is established or largely funded by government, it is probably subject to the state’s openness laws.
7. Closed meetings. State law says public bodies must meet in the open except in certain narrowly proscribed situations, like 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 practices: Meetings of public bodies should almost always be open to the public. Exemptions to this rule should be construed as narrowly as possible.
8. 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. Yet some governmental bodies persist in vaguely noticing agenda items.
Best practices: 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.
9. 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.
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.
10. 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 Wisconsin 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 practices: 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.
11. 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. A recent Attorney General opinion held that federal driver’s privacy protections do not apply to routine traffic accident reports.
Best practices: Legitimately private information should not be used as a justification for withholding an entire document when the privacy-related information can simply be redacted. Moreover, if a record is too private for the public to see, why are government officials collecting it?
12. Claims of abuse: An increasingly common argument is that because some people misuse public information, it should not be available. This is especially true in battles over Wisconsin Circuit Court Access, the state’s online court records system. Claims that information on this site is misinterpreted and used illegally are propelling legislative efforts to curtail what records are available, and who can see them.
Best practices: If there is evidence that people are using public records to illegally discriminate against others in employment, then prosecutions against that illegal discrimination should ensue, not crackdowns of the ability to obtain public information.