Wisconsin Freedom of Information Council

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January: Lawmakers should keep promise on transparency

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A week after Republicans in the state Legislature voted to gut the public records law in 2015, members of the Assembly sought to quell backlash over the plan.

A resolution that passed 96-1 affirms that the Assembly “remains committed to our state’s open record and open government laws and policies, and will take all necessary steps to ensure that these laws and policies are preserved without modification or degradation.”

Fast-forward two-and-a-half years: Has the Assembly kept its promise? Here are some recent events to consider.

In November, Assembly Chief Clerk Patrick Fuller and Senate Chief Clerk Jeffrey Renk denied public records requests from multiple news organizations for records of personnel and sexual harassment investigations.

Among other reasons for withholding the documents, the clerks claimed disclosure would have a chilling effect on employees’ use of the Legislature’s internal complaint process. This position was backed by Assembly Speaker Robin Vos (R-Rochester) and Assembly Minority Leader Gordon Hintz (D-Oshkosh), who argued that releasing records in such cases could reveal the names of victims and witnesses, even when identifying information has been blacked out.

Viewed in the best possible light, these are not unreasonable concerns. But courts in Wisconsin have repeatedly affirmed that disclosing records about alleged misconduct by public officials and employees serves the public interest. And judges have found that victims and witnesses can be protected by redacting identifying information while disclosing the substance of what happened.

That same month, the Assembly passed a bill that blocks release of most police body camera footage. Only recordings depicting deaths, injuries, searches and arrests would be subject to release.

The measure further requires law enforcement agencies to deny requests for video recorded in places where people have a reasonable expectation of privacy, such as inside homes, unless all witnesses, victims and property owners sign a waiver consenting to the video’s disclosure.

Open government advocates, including the Wisconsin Freedom of Information Council, believe the bill unnecessarily hampers access to body camera footage, which the public is paying for. Already, the law allows police to deny release of records when the harm from disclosure outweighs the public interest.

Separately, the Assembly is considering a bill that would seal court records about people wrongfully convicted. The measure, AB 548, effectively turns the public records law on its head by requiring that records be confidential unless a judge finds there is an overriding public interest in access to the documents.

While the aim of the bill is commendable—to help those exonerated rebuild their lives—sealing off all records about wrongful convictions goes too far. Access to such information is essential if the public has any chance at holding prosecutors, judges and the justice system accountable for wrongful prosecutions.

So, to review: The Legislature has refused to release records about personnel and sexual harassment investigations, advanced a bill to restrict access to body cam footage, and is considering legislation to seal off documents about wrongful convictions.

Has the Assembly kept its 2015 commitment to ensure the public records law is “preserved without modification or degradation?” You be the judge.

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. Council member Jonathan Anderson is a reporter for USA TODAY NETWORK-Wisconsin.

Last Updated on Thursday, 04 January 2018 12:10

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.

Last Updated on Thursday, 30 November 2017 15:57

October: Are officials giving out too much information?

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The nonprofit group I belong to is called the Wisconsin Freedom of Information Council. Our mission is to protect and expand access to public records.

Usually this entails pushing state and local government officials to be as open as possible. But lately, a number of developments raise a peculiar concern: Are officials being too open?

In June, the Wisconsin Supreme Court ruled in Teague v. Schimel that the state Department of Justice defamed a Milwaukee man by releasing information on offenses committed by a relative who used his name as an alias, without making this clear. The majority felt the agency needed to provide more complete information, in the interest of accuracy. No problem. More information is good.

But litigation has also been brought against public officials for releasing information that is indisputably correct. A woman who accused former UW basketball coach Bo Ryan of misconduct (an internal probe found no wrongdoing) has sued university officials for allegedly revealing her identity, calling this “unreasonable, intentional, reckless, malicious, willful, arbitrary, capricious and/or highly offensive to a reasonable person.” The case is pending in federal court.

And a former Green Bay police officer is suing the city of Green Bay for fulfilling a records request from a newspaper regarding the circumstances of his departure. He says the release violated a confidentiality agreement and caused him embarrassment, monetary losses and emotional harm.

Courts have recognized a strong public interest in knowing more about the individuals who patrol our streets, manage our tax dollars, teach our children, and represent us in government. This interest has been deemed more important than the privacy rights of individual public employees.

Then there are those who want to restrict access to data on the state’s online court records system. They say no one should be able to see that they were charged with a crime if they weren’t convicted; some folks don’t even want people to know if they were. A state committee has recommended reducing the display times for dismissed cases, which would remove thousands of files from the site. That’s a troublesome precedent—responding to a perceived problem by taking information away.

Information compiled by government at taxpayer expense belongs to everyone—even if that is at times unwelcome.

Recently, the state Justice Department began compiling a "snapshot" of pending records requests on its website, updated weekly. It’s even begun posting records released in response to requests of particular public interest.

Such disclosure is painful for reporters who want to protect their ability to break stories. Now their competitors can track what matters they are looking into and potentially obtain key documents the same time as they do. A similar proposal in Scotland was decried as an attack on the press.

The Wisconsin Freedom of Information Council discussed the Justice Department’s new moves toward transparency at its last meeting and agreed to support the changes, even though it may mean an occasional blown scoop. We stood with our values if not necessarily our interests.

That’s the thing about information: sometimes it hurts. A free society has to accept that.

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. Bill Lueders, managing editor of The Progressive magazine, is the council’s president.

Last Updated on Monday, 02 October 2017 11:02

November: Good government is everybody’s business

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After 35 years of reporting on government, I’m not sure how much I’ve learned, but I do have some observations.

First, most politicians, government officials and staff want to do a good job and faithfully represent their constituents’ interests at city hall, the state Capitol, and in Congress.

Second, most probably prefer to not have the public looking over their shoulders. Some honestly (and mistakenly) think their work isn’t the public’s business. Some just don’t want to be bothered. Others have more nefarious reasons, and fear that transparency would reveal something unsavory.

Examples abound: Despite talking a good game, the Obama administration was more secretive than its predecessors, setting a new record for denial of open records requests. The Trump administration could end up being even worse in several respects.

In Wisconsin, the most notorious example was in 2015, when Assembly Speaker Robin Vos (R-Rochester) tried, with the help of the Walker administration, to gut the state’s open records law. Gov. Scott Walker has since called for quicker responses to records requests but the jury is still out on that. Attorney General Brad Schimel has been an advocate for open government but his office also has drawn criticism from some records requesters.

The state Supreme Court, which should be the staunchest advocate for citizen access, has instead backed closed government in some instances and has made itself less open to the public.

And from Appleton to Milton to Milwaukee County, local officials have tried to block access to records, met in secret when they had no good reason to do so, and otherwise drawn the curtains.

Third observation: Too often, citizens don’t much care. They’re busy with their own work, families and lives. They don’t want to have to worry about whether the village board met in secrecy over some development or an employee’s misbehavior or whether a reporter or a citizen advocate can access records.

An exception was the opposition to Vos’ attack. It was turned back because thousands of citizens flooded legislators with phone calls and emails, joining news organizations such as the Journal Sentinel and advocacy groups such as the Wisconsin Freedom of Information Council.

Holding government officials and politicians accountable should be everyone’s business, because what they do affects all of us. Whether it’s who gets the contract for that public development or who is influencing state legislators in Madison or representatives in Washington, it matters.

Every day there is a new reason for vigilance. On Oct. 31, an Assembly committee approved a deeply flawed bill, AB 351, that would dramatically restrict the public’s access to videos taken by police body cameras. The bill would block the release of any video that did not involve police use of force, arrest or detention and make it extremely difficult to obtain video from private workplaces or residences, even of encounters that raise issues of undeniable public interest.

This bill merits wide public condemnation and rejection.

Good government is the business of every citizen. What we do can make a difference. So although I’m leaving the platform that the Journal Sentinel has generously given me for 35 years, I’ll still do what I can along with my fellow citizens to keep a light on government.

Politicians should remember: We’ll be watching.

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. Ernst-Ulrich Franzen recently retired as associate editorial page editor of the Milwaukee Journal Sentinel.

Last Updated on Wednesday, 01 November 2017 20:29

September: Officials shouldn’t block social media users

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In an age where major public policies are announced and debated through platforms like Facebook and Twitter, the courts are increasingly barring public officials from limiting people’s access to social media.

In late July, a Virginia judge ruled that public officials do not have the right to block people who disagree with their views from an official Facebook page. A legal challenge also has been brought by people blocked from the president’s @realDonaldTrump Twitter feed.

And in August, the American Civil Liberties Union of Maine sued on behalf two residents who claim the governor violated their First Amendment rights by blocking them from posting on his “Paul LePage, Maine’s Governor” Facebook page.

In the Virginia case, resident Brian Davison sued Loudoun County Board Chairwoman Phyllis Randall for blocking access to her Facebook page after he posted allegations that school board members and their families had possible conflicts of interest. The block lasted only a few hours, before Randall reconsidered, but even that was deemed unacceptable.

“Defendant’s actions, while relatively inconsequential as a practical matter, did in fact violate plaintiff’s right of free speech under the First Amendment to the United States Constitution and … the Constitution of Virginia,” wrote Judge James Cacheris for the U.S. District Court in Alexandria.

The judge noted that Randall’s Facebook page listed her official county contact information and that she had asked constituents to use the page to convey their thoughts about county business. It was not, he concluded, “merely a personal website that she may do with as she pleases.”

In the Trump Twitter case filed July 11, eight plaintiffs including the Knight First Amendment Institute alleged that the president violated the Constitution by excluding people who disagree with him from his Twitter feed.

“President Trump’s Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important public forum for speech by, to, and about the President,” the suit states.

Tom Kamenick, deputy counsel for the Wisconsin Institute for Law and Liberty, a nonprofit that promotes individual freedom, said experts disagree about whether the @realDonaldTrump Twitter account would fall under the First Amendment.

“Simply because a public official maintains a social media account does not make it an official government account,” said Kamenick, who serves on the Wisconsin Freedom of Information Council.

Whether it is an official account could depend on the account’s name, the types of messages posted on it and whether government resources are used to maintain it, Kamenick said. But if it’s an official account, he said, “the government cannot engage in viewpoint discrimination by blocking users or deleting comments for expressing a particular opinion.”

Scot Ross, executive director of the liberal advocacy group One Wisconsin Now, said that is exactly what is happening with his organization. The group is blocked from the official accounts of Republican state Reps. Jesse Kremer (@repjessekremer), Robin Vos (@repvos) and John Nygren (@rep89) as well as the account of Milwaukee County Sheriff David Clarke, he said.

“They oppose our views and have all blocked us in what we believe is a violation of both the First Amendment and the state's open record laws,” Ross said.

Facebook and Twitter are fast becoming the new town squares. Officials should not be allowed to wall them off.

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. Dee J. Hall is the council’s secretary and managing editor of the Wisconsin Center for Investigative Journalism.

Last Updated on Thursday, 31 August 2017 08:58

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