Wisconsin Freedom of Information Council

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August: Supreme Court openness rulings a mixed bag

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As befits a year in which anything, it seems, can happen, the Wisconsin Supreme Court’s public records docket this term was marked by atypical cases.

In Voces de la Frontera v. Clarke, the Milwaukee County Sheriff’s Department redacted information from immigration detainer forms provided in response to public records requests, asserting that a federal immigration regulation required the redactions. A Milwaukee County judge and the Wisconsin Court of Appeals concluded that federal law did not require the redactions, but the Supreme Court disagreed.

Open government advocates were disappointed that the Supreme Court’s opinion focused almost exclusively on this interpretation of federal law, not the presumptions of openness enshrined in Wisconsin statutes.

In Teague v. Schimel, the court looked at whether the Wisconsin Department of Justice violated individuals’ rights by releasing background check materials that sometimes reflected the criminal records of other individuals with the same names and birthdates or that had been used as aliases.

Those besmirched by the offenses of others argued that lives were negatively affected as a result.

The Supreme Court agreed that Teague had reason to complain that his cousin’s record was released as his. Openness advocates anticipate the ruling will not have a broad impact, because the issues it raised had less to do with transparency in government than allegations that government failed to correct defects in its process.

In Democratic Party of Wisconsin v. Wisconsin Department of Justice, the court ruled that the Department of Justice does not have to release videos of training sessions that it argued would give away sensitive information about law enforcement techniques.

This decision especially disappointed open government advocates because of majority author Justice Rebecca Bradley’s suggestion that the partisan motivation of the requester could be taken into account, contrary to how the law has previously been interpreted. Already, this argument has been invoked in other cases.

In Krueger v. Appleton Area School District, the court determined that a school committee formed to review course materials was a “governmental body” subject to the Wisconsin open meetings law, rejecting arguments to the contrary. It was a major win for openness and accountability.

And then court took a big step backward when it decided to close its own administrative rule meetings, which had previously been public. This result was unexpected and, to open government advocates, dismaying.

In its upcoming term, the court has agreed to hear Madison Teachers Union v. Scott, which stems from a union’s request for state records regarding which members had voted during a union recertification vote. The request was denied on grounds that the union would coerce and intimidate employees during the voting process.

The state Department of Justice cited Justice Bradley’s opinion regarding a requester’s motivation in a brief defending this denial.

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. April Barker is the group’s co-vice president. The group filed friend of the court briefs in the cases involving Sheriff Clarke and the Appleton Area School District.

Last Updated on Tuesday, 01 August 2017 13:00

July: End lawmakers' ability to destroy records

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Not long ago, I asked Wisconsin Assembly Speaker Robin Vos (R-Rochester) for records regarding a controversial bill he helped author on free-speech rights at state universities.

I had already obtained some communications between Vos aide Alicia Schweitzer and the Legislative Reference Bureau, from the bill-drafting file. They showed that his office had added bill language calling on UW-System schools to punish "indecent, profane, boisterous (or) obscene" conduct that interfered with others' free speech.

The LRB bill drafter, Mark Kunkel, deleted these terms, saying they were overly broad and ambiguous. But Schweitzer insisted that they be restored. The resulting bill drew flak because of this language, which its lead sponsor agreed likely made it unconstitutional. The language was removed to establish narrower grounds for punishment before the Assembly voted to approve it.

I expected my records request would yield these bill-drafting exchanges, along with any internal communications concerning the office's decision to reject Kunkel's good advice. But no such records were among the unwieldy stack of 659 pages provided for my review.

When I asked why this was so, Vos aide Steve Fawcett explained: "Given that the Assembly is not under the duty to retain records in the normal course of business, it is likely that Alicia simply deleted the document(s) you inquired about prior to your initial request."

Yep. The office of Speaker Vos destroyed revealing records regarding its role in crafting this bill. And, as Fawcett noted, current law allows it. Similar records destruction has happened in other cases, involving other lawmakers.

That's because legislators exempted themselves from the records retention rules in place for every other state and local government employee. If the mayor of Oshkosh receives a complaint about a crack in a sidewalk, he must retain it for at least seven years. But a legislator who gets an email from a lobbyist urging a vote in exchange for a contribution can legally destroy it, absent a pending records request.

A few years back, a Democratic lawmaker introduced legislation to end this exemption. It didn't even get a hearing. The lawmaker believed both the exemption and its elimination were unneeded, since "legislators keep all this stuff anyway."

Now we know this isn't true. Some lawmakers are selectively destroying key records. We should not let them get away with it.

In 2015, lawmakers sneakily added budget language drafted by Vos that would have shut down access to bill drafting files and let lawmakers shield communications with staff, among other things. The bipartisan blowback was enormous, and lawmakers were forced to back down. Now they are using a different law to achieve the same end.

Vos did not respond to an invitation to provide additional information or perspective.

Wisconsin lawmakers should not be destroying records they create and receive in their official, taxpayer-funded capacity. Every legislator and all candidates for this office should be asked, by citizens and the media, whether they will work to end this exemption.

Otherwise, the public should be looking for other representation.

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 is the group's president.

Last Updated on Thursday, 29 June 2017 08:36

May: Lawmakers abuse budget-fix motion

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It’s been nearly two years since Republicans in the state Legislature tried to use a secretive, last-minute measure just before the July 4 holiday weekend to gut Wisconsin’s open records law . This effort, once publicized , was met with public outrage and abandoned .

This was the most egregious but by no means only example of lawmakers trying to slip bad ideas into the state budget bill in the Legislature’s Joint Finance Committee, under what is known as a 999 motion.

As lawmakers prepare to wrap up the 2017-19 state budget by July 1, the 999 motion remains a serious threat to open government and the public interest.

Originally intended to address technical issues and correct problems in the budget bill before it goes to the full Legislature, 999 motions have increasingly been used by both parties as a hiding spot for pet projects.

In the five budget bills before 2011, the 999 motion averaged five pages and 15 motions. But with the 2011-13 bill, the bill expanded to 11 pages and 54 proposals. By 2015-17, it had ballooned to 24 pages and 81 proposals.

In 2013, the motion included a provision to boot the Wisconsin Center for Investigative Journalism from its space at the University of Wisconsin-Madison. Another provision would have legalized bail bond agents in five counties. Another created an income tax deduction for private-school tuition at an estimated cost to the state of $30 million in the 2014-15 fiscal year.

Besides the open government provisions, the 2015 motion called for changing the makeup of the committee that oversees state legislators’ retirement plan; replacing references to a “living wage” in state statutes to “minimum wage”; and expanding the types of products and services that payday lenders could provide.

“In many cases, it’s used to put things into the budget that would never, ever stand the test of fresh air and sunlight,” said former longtime Republican state Sen. Mike Ellis. “It doesn’t meet the smell test for allowing the public to know exactly what the changes are going to be and the impact the changes will have on the taxpayers of Wisconsin.”

The sort of things showing up in the 999 motion aren’t technical fixes. They are spending measures that should be considered and debated during budget hearings. They are policy items that don’t belong in the state budget at all. The goal is to skirt public scrutiny and even the scrutiny of many legislators who vote on the bill.

Worse, the process lets lawmakers submit items to this motion anonymously; they don’t even have the guts to present their ideas openly. That should not be allowed: All rules, motions, bills or amendments should require a sponsor.

It’s true that not all 999 motion items make it into the budget. But they don’t belong in this instrument at all. The 999 motion was never meant to be a weaselly way for anonymous legislators to circumvent what is supposed to be an open process.

Bring these measures into the light of day—with names attached.

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. Larry Gallup is the regional content strategist and interim consumer experience director for USA TODAY NETWORK-Wisconsin.

Last Updated on Tuesday, 02 May 2017 05:38

June: Mail ballots are an affront to transparency

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The Wisconsin Constitution states that "the doors of each house" of the state Legislature "shall be kept open," except on rare occasions. But even with the doors open, the public may not know what’s going on.

A growing trend threatens transparency—and good government—in Wisconsin. Some legislative committees are using "mail ballots" to vote, instead of voting during public meetings.

Important measures have passed out of committee this way. The Assembly Committee on Organization used mail ballots in 2015 to increase lawmakers’ per diem payments, and in 2013 to lift the ban on campaign fundraising during the budget-writing process.

In the Senate, which more broadly permits the practice, mail ballots recently authorized controversial high-capacity well legislation and a recovery charter school contract.

Meetings where votes are cast in person can be attended by the public or viewed on WisconsinEye. By avoiding this process, mail ballots make it harder for citizens to understand what their elected representatives are voting on and why.

This use of mail ballots has predictable impacts on the public’s faith in government. One critic of the well-legislation vote called this avoidance of public discussion "just another example of concealing the effects of the legislation they’re enacting."

And Brett Healy of the conservative MacIver Institute told the Milwaukee Journal Sentinel in 2013, "If it’s being used by politicians to avoid questions from the public or the press, that’s a concern for everyone in Wisconsin."

Mail ballots lack the notice that usually precedes an in-person vote—posting in three places at least 24 hours in advance, as well as on the Legislature’s website.

In both 2017 and 2013, legislative committees voted by mail ballot to hire law firms to defend the state’s redistricting maps in court. Some reporters were notified by the Assembly, and the Senate committee posted a single notice in a quiet Capitol hallway. The rest of us were left out of the loop.

The use of mail ballots also deprives legislators of opportunities to suggest amendments. "It’s basically take it or leave it," said state Senator Chris Larson, D-Milwaukee, in 2013. "There’s no room for debate." He and other legislators had to vote on hiring the law firm for the redistricting dispute without knowing critical details, like the firm’s billing rate.

Republican legislative leaders note that Democrats used mail ballots when they controlled the Senate in 2009, and to take some votes when they fled the state during the 2011 Act 10 battles.

But a bad idea doesn’t get any better because someone has had that idea before. Transparency suffers either way. In 2005, a state court panned the use of mail ballots in an open meetings law case, saying they rendered "the work of government all but invisible."

Legal questions aside, citizens shouldn’t have to wait for future courts to limit or fix this problem. Legislators should hear loud and clear that votes should be taken in person, with all the deliberation, input, and process that entails. Otherwise, democracy is reduced to just shuffling paper.

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. Christa Westerberg, an attorney at Pines Bach law firm in Madison, is the group’s co-vice president.

Last Updated on Thursday, 01 June 2017 12:23

April: Walker’s order on records is welcome

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In March, for the second year in a row, Wisconsin Governor Scott Walker issued an executive order regarding the state’s open records law.

It notes that “the American republic and the State of Wisconsin were founded on the basis of broad accountability of government to the people.” And it declares that “the free flow of information from the government to the people instills trust and confidence in our democracy and ensures that our government is accessible, accountable, and open.”

The order directs state agencies to track and post their record response times and, like last year’s order , gives procedural guidance that should make it easier for citizens to request and receive records.

It instructs agencies to charge no more than 15 cents per page for provided photocopies and to charge no more than $30 per hour for government employees’ time spent locating records. It directs that agency meeting notices be posted in a centralized location on Wisconsin.gov, making these more accessible to the public. And it prescribes records training “for all employees and members of all boards, councils, and commissions.”

The governor issued his executive order just as media outlets were analyzing state agencies’ performance since the 2016 order. The Wisconsin State Journal reported that state agencies were responding more quickly to public records requests since Walker issued the 2016 executive order, though some agencies performed better than others. Overall, the paper found, the average records response time has fallen from 13 to nine days.

USA Today Network-Wisconsin also compared state agency public records requests and responses and found that some agencies took considerably longer than others to fulfill requests, even after the 2016 executive order directed that small and straightforward requests be fulfilled within 10 days whenever practicable and directed that sufficient staff be allocated to ensure that all requests be fulfilled as soon as practicable.

According to this analysis, the governor’s office received fewer requests but took longer to respond than other agencies. Like other agencies whose response times were on the slow end, the governor’s office blamed the complexity of the requests for the delays in responding.

With greater scrutiny, there may be more occasion for agencies to be called upon to explain poor performance. This is the way that government is supposed to operate: The public is supposed to know when government is operating well, and when it is not. Without transparency, there cannot be accountability.

To that end, the 2016 and 2017 executive orders are welcome steps in the right direction. A year from now, we hope there will be fresh outside analysis of state agencies’ performance and still more guidance from the governor’s office regarding concrete improvements that can be made.

A word to local government officials: There’s no need to wait to follow the governor’s lead in seeking to improve records and open meetings practices. If the state can challenge itself to do better, then local government leaders, individually and through collective associations and groups, can and should do the same.

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. April Barker, the Council’s co-vice president, is an attorney with Schott, Bublitz & Engel of Brookfield.

Last Updated on Monday, 03 April 2017 11:41

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