Wisconsin Freedom of Information Council

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Wisconsin Freedom of Information Council

Action Alert on Bill to Suppress Court Records in Wrongful Convictions

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The Wisconsin Freedom of Information Council is issuing an Action Alert on AB-460, a bill whose main purpose is to raise the compensation level for state victims of wrongful imprisonment. The bill unanimously passed the state Assembly on Tuesday.

Our concern is with how the bill would affect public access to case recordsmuch more significantly than has beeen publicly acknowledged. The bill as passed would not just require the removal of information on wrongful convictions from the state's online records system, or WCCA, as The Associated Press reported in October. It would actually completely shut off access to court records related to wrongful convictions.

According to the Legislative Reference Bureau analysis, "Under the bill, if a person's conviction for a crime is reversed, set aside, or vacated on grounds consistent with the person's innocence, and the person is ordered released from prison by a trial court, the court is required to grant the person, upon request [remedies including] sealing of all records related to his or her conviction."

The actual bill language calls for: "Sealing of all records related to the case. Records sealed under this section shall be accessible to the person but may not be available for public inspection or through the consolidated court automation program case management system."

This is a sweeping and radical requirement, one that will dramatically compromise the ability of media and the public to examine what went wrong in cases in which things are known to have gone terribly wrong.

The Wisconsin Freedom of Information Council opposes any reduction in public access to court records of wrongful convictions. As the Wisconsin State Journal noted in a Dec. 18 editorial , which assumed that the impact would be only to online court records:

"Rather than hiding its terrible mistakes from the public, the state should add information to electronic public records so it’s perfectly clear the individuals were victims, not criminals. It’s important for citizens to know their state justice system sometimes gets verdicts wrong."

Such concerns are greatly magnified when applied to all court records regarding wrongful convictions. The Council calls on advocates for open government to oppose this effort to protect the perpetrators of wrongful convictions from accountability. We urge that the Senate remove or amend this language, if and when it takes the bill up.

 

Online court records facing new threats

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Dear Council members and supporters,

This is to make you aware of developments regarding access to online court records, especially an open rules conference this morning (May 12) before the Wisconsin Supreme Court.

The court voted 5-2 to dismiss a rules petition from the State Bar of Wisconsin from 2009. But it did so with the understanding that the petition would be refiled, giving it a fresh opportunity to take this issue up again. Chief Justice Roggensack and Justices Prosser, Ziegler, Gableman and Rebecca Bradley voted in favor of dismissal, to pave the way for a fresh petition. Justices Abrahamson and Ann Walsh Bradley voted against.

That 2009 petition called on the court to significantly increase the availability of expungement of criminal cases, including the removal of information from WCCA, the state court's online records system.

Earlier this year, the court deadlocked 3-3 on a similar motion, with Justice Prosser voting against dismissal and Justice R. Bradley not participating . But Justice Prosser brought a motion for reconsideration and this time voted to dismiss, joined by R. Bradley, who said she had since been able to review petition-related materials.

The Council has long supported public access to online court records and fought against efforts to remove information. I need not recount the various arguments in favor of openness, which have also been sounded by business groups and the state Department of Justice, as in this filing. What is troubling about today's proceeding is the extent to which the justices, despite their differences, which at times were scarcely coherent, seemed to agree on the need for changes to remove certain information from the system.

Several justices spoke about the parade of citizens who came before the court in 2010 to attest to the various ways that WCCA, which everyone calls CCAP, has ruined their lives. None of these claims were subjected to even the most rudimentary investigation to determine their credibility, and, as I have reported in the past (as in here and here), at least some of these claims have been shown to be untrue.

The justices demonstrated a wholesale willingness to believe these unproven claims, as when Prosser said that repercussions to people on WCCA occur "often in situations where they were not involved and are found not guilty." That the records system would provide clear and irrefutable confirmation of a not guilty verdict apparently was not deemed relevant.

Rebecca Bradley noted that the actions called for in the petition seemed "quite legislative in nature," which would be a big no-no for a court dominated by people who vow to never legislate from the bench. But she voted to dismiss to entertain a new petition.

Even the two justices who voted no seemed open to restricting access. Ann Walsh Bradley said she opposed the motion to dismiss because "it is our responsibility to solve this problem."

In addition to the court's interest in revisiting this issue, possible restrictions to records access are being presented on three other fronts:

 

  • The director of state courts is now pulling together a new WCCA oversight committee, to work out issues related to moving to all-electronic records-keeping in the state circuit court system. This committee was mentioned during today's hearing as another way in which perceived problems stemming from access to court records might be addressed. I have been asked to serve on this committee but do not know to what extent advocates for open records will be otherwise represented.
  • A Legislative Council committee chaired by Sen. Alberta Darling will look at ways to reduce recidivism and remove impediments to ex-offender employment, which will likely include calls to shield online court records. The membership of this committee has not been announced.
  • Finally, a bill to expand expunction introduced late in the current legislature session will almost certainly be reintroduced in 2017-18. The bill, AB 1005 in its current incarnation, would allow any person on the receiving end of a criminal charge that was dismissed or which led to a finding of not guilty, or was overturned on appeal, to petition a judge for expunction, including records removal. This would pertain to past cases without limits on when the charge was filed or the age of the person. O.J. Simpson would be eligible if he had been tried in this state.

 

So that's what's happening with regard to online court records. Current levels of access are very much at risk. Continued vigilance by advocates for open government is essential.

 

December: Many school districts fail test on records

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State law makes nearly all governmental records open to inspection and copying, and requires custodians to release records “as soon as possible and without delay.”

So how are they doing?

Recently, the Wisconsin Institute for Law & Liberty conducted an experiment to see how well school districts are complying with the state’s Open Records Law.

We asked the state’s 20 largest school districts for records from the last two years relating to their compliance procedures and how quickly they fulfilled requests. The results were tabulated in a recent report. Here are some highlights:

The good: Of the 12 school districts that fulfilled our request without charging a fee, six of them (Appleton, Green Bay, Janesville, Racine, Waukesha and West Allis-West Milwaukee) reported response times, on average, of 10 business days or fewer.

Governor Scott Walker, in his 2016 executive order, required state agencies to respond to “small and straightforward requests within 10 business days of receipt.” The order doesn’t bind school districts, but we are happy to see many school districts meeting that deadline anyway. Three other school districts (Fond du Lac, Stevens Point and Sun Prairie) were not far behind, fulfilling requests, on average, within 15 business days.

The bad: Not all districts were so prompt. Middleton-Cross Plains, for example, even though it received only 13 requests over the two-year period, took 16.8 business days, on average, to comply. Oshkosh received only 25 requests, but took almost 20 business days.

Worst of all was Milwaukee Public Schools, with an average response time of 30 business days. While MPS is far larger and receives far more requests than any other school district, the Department of Natural Resources, despite receiving almost 8,000 requests, is able to respond in about 10 business days. The Department of Public Instruction, which has as large of a budget as MPS, responds in about 13 business days.

MPS spends over a billion taxpayer dollars every year; it needs to devote more resources to complying with the Open Records Law.

The ugly: Of the 20 largest school districts, seven (Eau Claire, Elmbrook, Kenosha, Madison, Sheboygan, Wausau and Wauwatosa) would not fulfill our requests without payment. The fees ranged from $15 to, in Madison’s case, more than $1,000.

According to the Madison Metropolitan School District’s attorney, the district does not have a system for tracking open records requests, hence its extremely high fee in this case. While records custodians are allowed to charge for locating records, school districts that need so much time to locate records are apparently not doing a good job of tracking requests. It should not be so hard to find out how well any government entity complies with the law.

The takeaway: Walker’s executive order led to measurable improvements in the response time of state agencies. School districts and other local governments can use the same processes, including better training and tracking systems, to achieve similar improvements.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Tom Kamenick is deputy counsel with the Wisconsin Institute for Law and Liberty. Libby Sobic is an associate counsel at the firm.

 

December: Open the door to open data

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Scott Resnick, a former Madison alderperson, is proud of the work he’s done to advance the cause of open data. In 2012, the city enacted what he says was only the second open data ordinance in the country.

Open data is the practice of releasing huge quantities of public information in electronic form so it can be put to other public purposes. Governments, citizens, companies or others may then discover ways to use the data to create technological applications or to identify public issues that should be addressed.

While the concept sounds tech-heavy, the potential applications of open data span any number of real-world applications. For example, in Madison, Resnick says, a “bus radar” application designed by a university student allows would-be riders to track the location of a bus in real time, making it easier to avoid missing the bus.

The city of Madison’s open data initiative also led to development of an “adopt a fire hydrant” app that encourages citizens to locate and shovel out fire hydrants nearest them, Resnick says.

Nationally, the open data movement has increased access to geographic and weather data. Another “hot topic” in open data, Resnick says, is tracking police-related shootings and ensuring that data is standardized so that meaningful comparisons can be made.

Open data is popular among a new generation of virtual volunteers, including what Resnick refers to as “civic hacking groups.” Businesses are also prolific users. Resnick, who serves as chief operating officer of a private company, sees both as “a worthy use of government resources.”

Some companies use the data to improve public health, Resnick adds, noting that a private California-based company has developed an application that works with local fire departments to locate the nearest hospital for individuals in need of CPR. While the company is for-profit, Resnick notes, “their goal is to save lives.”

And while some companies may offer services derived from open data for a charge, Resnick says that when those companies compete with others who offer the services for free, “almost always, the free one has won out.”

Critics complain that open data only showcases data that government agencies choose to share, not more controversial records and information. But Resnick calls open data a “first step” that reinforces positive attitudes within government toward publicly releasing data. (He stresses that government should be careful to consider individuals’ privacy when releasing data.)

Other Wisconsin communities, including Milwaukee, are taking steps toward open data initiatives, and there is in interest on the state level, Resnick says. Many other states have legislation promoting open data.

With so much broad-based support for open data, those who seek to promote transparency in government need to be part of the conversation as it moves forward.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. April Barker, the Council’s co-vice president, is an attorney with Schott, Bublitz & Engel of Brookfield.

 

Wisconsin Freedom of Information Council names 2018 “Opee” winners

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FOR IMMEDIATE RELEASE

Contact: Bill Lueders (608) 669-4712

March 8, 2018

Wisconsin Freedom of Information Council names “Opee” winners

Gov. Scott Walker, several journalists and a courageous private-sector employee are among those honored by the 2017-18 Openness Awards, or Opees, bestowed annually by the Wisconsin Freedom of Information Council. The state Legislature, meanwhile, is being singled out for negative recognition.

The awards, which are being announced today in advance of national Sunshine Week (sunshineweek.org), March 11-17, recognize extraordinary achievement in the arena of open government. This is the 12th consecutive year that awards have been given.

“For more than a decade, the Opees have served to remind state residents that open government is a perpetual struggle, with heroes and villains,” said Bill Lueders, council president. “We need as many of the former as we can get.”

The Wisconsin Freedom of Information Council is a nonpartisan group that seeks to promote open government. It consists of about two dozen members representing media and other public interests. Sponsoring organizations include the Wisconsin Newspaper Association, Wisconsin Broadcasters Association, Wisconsin Associated Press, Wisconsin News Photographers and the Madison Chapter of the Society of Professional Journalists.

The winners will be invited to receive their awards at the eighth annual Wisconsin Watchdog Awards dinner in Madison on Thursday, April 19. The event is presented by the Wisconsin Center for Investigative Journalism, Wisconsin Freedom of Information Council and the Madison Pro Chapter of the Society of Professional Journalists.

Awards are being given this year in six categories. The winners are:

Citizen Openness Award (“Copee”): Joe Terry

This resident of the village of Port Edwards in central Wisconsin spent more than 100 hours looking into alleged open meetings and ethics violations by the village board. His complaint to the Wood County district attorney led to the appointment of a special prosecutor and ultimately to a settlement requiring some officials to receive training on the state’s openness laws. Five of the board’s seven members either resigned or were voted out. Terry, who stepped down as Port Edwards’ village administrator in 2015 after 18 years, told USA Today Network-Wisconsin he felt obligated to act, saying the conduct he reported “reflects poorly on all government officials.”

Media Openness Award (“Mopee”): Tim Damos

It was a banner year for this Baraboo News Republic reporter covering public officials in Sauk County who seem allergic to open government. He exposed the intrigue behind one official’s departure and $135,000 contract buyout. He broke stories revealing that Sauk County Board leaders made false sworn statements and that the county’s former highway commissioner solicited NASCAR tickets from a contractor. His paper, based on his reporting, has filed a lawsuit seeking other information, as well as a complaint over a county committee’s failure to adequately provide notice of its discussion about an important personnel issue. Now he’s covering efforts by Sauk County officials to limit public comment at meetings.

Political Openness Award (“Popee”): Scott Walker

Last March, for the second year in a row, Wisconsin’s governor issued an executive order ordering state agencies to improve their performance on open records requests. It directs them to track and post their record response times and limits how much they can charge. It also requires “regular training for all employees and members of all boards, councils, and commissions.” Walker’s efforts in this area, including his executive order in 2016, are much appreciated.

Open Records Scoop of the Year (“Scoopee”): Wisconsin State Journal and Media Milwaukee

Both outlets pushed back against official secrecy to break major stories on sexual harassment. State Journal reporter Molly Beck reported on complaints against four lawmakers, including one that led to a $75,000 settlement, while colleague Nico Savidge exposed weaknesses in the UW-Madison’s reporting procedures and pulled back the veil on multiple accusations involving a particular professor. And UW-Milwaukee student journalists at Media Milwaukee unearthed dozens of allegations of harassment involving professors and other staff, shining a light on an overlooked issue.

Whistleblower of the Year (“Whoopee”): Will Kramer

At the heart of the Milwaukee Journal Sentinel’s remarkable series on the dangers posed by industrial barrel recycling plants was Will Kramer’s courageous refusal to keep his mouth shut while lives were at risk. The industry risk-management and safety consultant, who secretly recorded one plant manager remarking that the drums “could blow up and kill eight people in a heartbeat,” went to the Journal Sentinel after government regulators failed to act. The paper’s resulting “Burned” investigation led to significant fines and safety improvements. Kramer has since left the industry to pursue a law degree.

No Friend of Openness (“Nopee”): The Wisconsin Legislature

The state’s highest legislative body is on record as being “committed to our state’s open record and open government laws and policies.” That’s often hard to tell. This year lawmakers from both parties denied requests for records of sexual harassment investigations and refused to provide electronic records in electronic form. The Republican majority also held secret meetings to hash out budget details, continued to conduct business by using abusive mail ballots and selectively blocked access to their social media accounts. With friends like these….

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