This letter is to formally request an investigation by your office into possible violations of the state Open Records Law by officials at the state Department of Transportation and perhaps other agencies. I write in my capacity as acting president of the Wisconsin Freedom of Information Council, a group devoted to protecting public access to records and meetings. The council consists of representatives of the Wisconsin Associated Press, Wisconsin Newspaper Association, Wisconsin Broadcasters Association, Wisconsin News Photographers and Society of Professional Journalists, as well as public members.
As documented in news accounts, the state Department of Transportation repeatedly rebuffed oral and written requests for a copy of a report on the costs to the state of shifting work from state employees to outside consultants, saying it was not yet complete. When the report was eventually released, in November 2004, it was dated as being from April 2004. A subsequently released memo confirmed that the report was completed in April and had circulated outside the DOT; it also revealed that the report released in November was unchanged from the version in April. This memo was released, in accordance with the Open Records Law, by Jim Thiel, the DOT’s longtime general counsel, on Friday, Dec. 10. The following Monday, Thiel was stripped of his duties by DOT Secretary Frank Busalacchi.
Our concerns are several. First, there appears to have been a deliberate decision on the part of the DOT and perhaps others to withhold the initial report, which undercut state claims that hiring consultants was more cost-effective than using state employees. According to news accounts, state engineers made repeated oral requests for the report throughout the spring, summer and fall of 2004. Tim Hanley of the State Engineering Association also made a written request, via e-mail, on Aug. 2, 2004, directed to DOT Secretary Busalacchi. Hanley also notified his members on Sept. 22 that he has met with Busalacchi that day and again requested the report. On Sept. 25, another written request was made, this time from Ken Weaver of the State Employees Union to DOT administrator Lynne Judd.
Wisconsin’s Open Records Law, as you know, requires custodians to respond to records requests “as soon as practicable and without delay.” Custodians who fail to conform with the requirements of the law are subject to penalties under Wisconsin Stature 19.37(4).
The Wisconsin Freedom of Information Council is also troubled by the sudden reassignment of attorney Thiel, who appears in this case to have only been doing what the Open Records Law requires. Certainly, the perception that a public servant was demoted for complying with the Open Records Law ought to concern the Attorney General’s Office, as it does the council, for the chilling message it sends to other records custodians.
Finally, the council is concerned that this may be another situation in which a record is withheld from the public under the guise that it is a “draft.” The law is clear that draft status applies only to documents “prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working.” This interpretation has been affirmed by a 1989 Wisconsin Supreme Court decision, Fox vs. Bock, as well as an opinion issued previously by the Attorney General’s Office (77 Atty. Gen. 100). Once a document is shared with others besides the originator or the person for whom the originator is working, as purportedly occurred in this case, it can no longer be considered a draft.
For all of these reasons, we think this matter deserves the attention of your office. Already, this is an episode that has bred distrust of government officials and, no doubt, fear among public employees who may be called upon to obey the letter and spirit of the Open Records Law. We believe the Justice Department may be in the best position to determine what happened, and take appropriate corrective measures.
Thank you for your time and consideration.
Sincerely,