Wisconsin Freedom of Information Council

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May: UW loses big when it tries to keep secrets

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When UW-Madison and UW-Milwaukee released records about sexual misconduct complaints to news organizations last month, they heavily redacted the documents and refused to identify numerous employees who were found to have committed wrongdoing.

Should media outlets sue to challenge those redactions, history suggests they’ll have a good shot at prevailing.

We are the authors of a new study examining public records litigation involving the University of Wisconsin System over the past 40 years. Our study didn’t just look at appellate-court decisions available online. Instead, we traveled to courthouses across Wisconsin to pore through thousands of pages in trial-court files that are not publicly available on the internet.

We analyzed 34 lawsuits in which a UW entity was sued under the public records law between 1978 and 2017. Of these, 18 originated with requests from news organizations, and in every one of these cases, the core records were released, even if some information was withheld.

For example, a 2011 lawsuit by the Appleton Post-Crescent led to the disclosure of documents regarding the dean of UW-Fox Valley, who abruptly retired after he was accused of threatening students and staff on an overseas trip. And in 2009, the Milwaukee Journal Sentinel sued successfully to obtain comments from the UW medical school faculty about a conflict-of-interest policy.

Advocacy organizations were also successful in suing the UW for public records. These included groups critical of affirmative action, skeptical of the quality of teacher training in university education programs, and concerned about possible animal abuse in research.

In contrast, students or employees who sued for purely personal reasons rarely gained access to the information they sought.

Half of the lawsuits involved the UW-Madison, while the remaining cases involved other campuses around the state. Two lawsuits sought records from multiple campuses.

Most of the cases involved requesters who sued after the university refused to release records. A handful were brought by employees seeking to block the release of records about them; those individuals always lost.

Much of the debate over records from institutions of higher education focuses on fears that transparency may chill academic freedom, and openness may deter candidates from applying for high-level jobs.

But we found no public records lawsuits seeking the identities of applicants for university positions after the early 1990s, while only a small number of cases featured academic freedom arguments for keeping records secret. Instead, most lawsuits sought information about alleged misconduct or suspected ethical lapses by university employees.

Our research also highlights the vital role the press plays in holding the UW accountable. Journalists around Wisconsin often use public records to shed light on problems in the UW System. But the precarious economic position of legacy news organizations makes them less likely to go to court to assert access-to-information claims.

Meanwhile, our research found that partisan, activist organizations began appearing as plaintiffs in public records actions against the university in recent years, regularly winning cases. Like journalists, activists seek to hold the university accountable, but partisan accountability may be fundamentally different from non-partisan accountability in ways that have yet to be examined.

Our study will be published in the Journal of College and University Law later this year.

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. David Pritchard is a professor of journalism at the University of Wisconsin-Milwaukee.

Last Updated on Thursday, 17 May 2018 09:45

April: Policies put public health at risk

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Wisconsin’s open government laws were meant to strengthen our democracy by ensuring an informed electorate. But, sometimes, transparency is about more than democracy—it is about human health, with serious consequences when transparency fails.

Earlier this year, the Milwaukee Journal Sentinel reported that the city of Milwaukee had failed to alert thousands of families whose children had blood tests indicating elevated lead levels. Lead from water pipes and old paint is a significant public health risk in Milwaukee and elsewhere, causing cognitive damage and other problems.

It later emerged that officials in Milwaukee had imposed a gag order on health department employees. It barred them from having contacts with elected officials without prior approval. Said one alder, “This policy is a disgrace and it likely restricted workers from coming forward sooner.” The policy has since been rescinded.

Sometimes, requests for health information and data are simply stonewalled, for no good reason. The Milwaukee Public School district failed to respond for weeks to questions about whether it tested drinking water fountains for lead. It later reported that 183 fountains had high lead levels.

And when La Crosse County learned about high levels of nitrate in drinking water wells near a large hog operation, it worked for months to get groundwater data from the Department of Natural Resources. Eventually, the county had to file open records requests, which took months to fulfill.

“If the state is keeping data on groundwater, why isn’t it sharing it willingly with its own counties, its own people, in the spirit of public health?” asked the La Crosse Tribune in an exasperated editorial. “County health officials shouldn’t be required to become experts on public-records law in order to find out whether there’s a health hazard in their own county.”

The DNR also came under fire last year for “muzzling” its scientists, preventing them from providing expert input on natural resource and other issues. Since 2011, DNR employees do not regularly testify at legislative hearings on matters within the agency’s purview.

Last year, a DNR scientist had to testify on his own time at a legislative hearing to roll back air-pollution standards. Other legislation, like a bill changing rules for managing chronic wasting disease in the state’s deer herd, had no DNR input at all.

Many public employees take seriously their duty to inform decision-makers and the public about ways to prevent health problems and lower risk. Yet some are unjustly penalized for reporting problems and sharing information. Multiple workers at the Veterans Administration hospital in Tomah, Wisconsin, were retaliated against for reporting the overprescription of opioids and other problems.

Government agencies should always be cognizant of their duties under transparency laws. But these duties gain extra import when government holds information that can help protect public health and safety.

Taxpayers pay for the expertise of government scientists and the data they collect and generate. While some discretion may be warranted in how it is released, this information should be accessible to the public. No gag order, stonewall, or muzzle should prevent 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. Christa Westerberg, an attorney at Pines Bach law firm in Madison, is the group’s co-vice president.

Last Updated on Wednesday, 02 May 2018 08:15

March: Let the sunshine in!

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Let the sunshine in!

In my career as a journalist, I have encountered many public officials who respect government openness and transparency.

There was the state records custodian who turned over dozens of her boss’s embarrassing emails after telling him that keeping them secret would violate the law. And the university staffers who pointed me to public information the school tried to keep out of the public eye. And the local elected official who told me what happened in a closed session she thought may have been illegally closed.

As we approach this year’s annual celebration of Sunshine Week, March 11-17, it’s worth recalling times when people entrusted with our tax dollars have stood up for our right to know. But too often government agencies and elected officials pledge fidelity to openness while acting to keep us in the dark. Some recent examples:

  • The Madison Police Department failed, for more than a year, to deliver records to the Madison weekly Isthmus—even after the newspaper paid the department its requested fee. The liberal weekly and the conservative Wisconsin Institute for Law and Liberty teamed up to sue the department for dragging its feet, and the records were belatedly released. Wisconsin law says records must be provided “as soon as practicable and without delay” but doesn’t spell out how long is too long. More than a year is too long.

  • State lawmakers, relying on advice from the Assembly and Senate chief clerks, have refused to turn over electronic copies of emails, saying they will provide only printed copies. A judge has already ruled against one lawmaker, a Republican, who was sued over this practice, while another lawmaker, a Democrat, has just been sued.

  • The state’s bipartisan legislative leadership has denied requests for records related to allegations of sexual harassment in the Legislature on grounds that secrecy protects the victims. Of course, they could just black out victims’ names and still let the public judge the credibility of the allegations and the adequacy of the response, but have refused.

  • The Madison school district has been less than forthcoming about disturbing allegations against teachers. In one case, a middle school teacher was dismissed after a dispute with a student, but district officials refused to share details. It took a blog post by the Madison police chief to reveal that the teacher allegedly slapped the student. In another case, a high school has refused to share details on student allegations that led to a teacher’s sudden retirement —including whether its investigation substantiated the allegations.

  • Officials in Sauk County have taken numerous steps to block the public’s right to know. The local newspaper has filed a complaint over vague meeting agenda language that failed to make clear what was going to be discussed. The county also withheld information about health insurance proposals until after a committee decided which option to pick. And it skirted a law requiring the disclosure of finalists for key public jobs, for which it is now being sued.

Taken together, these cases provide a disturbing reminder that the public’s right to know is under constant attack—and that defending it requires constant vigilance.

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 Mark Pitsch is an assistant city editor at the Wisconsin State Journal and president of the Madison chapter of the Society of Professional Journalists.

Last Updated on Wednesday, 28 February 2018 17:36

Wisconsin Freedom of Information Council names 2018 “Opee” winners

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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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February: Citizens have a right to electronic records

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Computers have made examining government records easier than ever. The smallest townships across Wisconsin post the meeting agendas and minutes online. And websites for government agencies at all levels contain an enormous amount of other information.

Electronic records are also available on request. Say you want to see a skate-park-feasibility study you’ve heard about. You can request this record from the agency that keeps it, and receive it via email. The whole process can be completed in minutes.

In the past, such a request might have meant days of waiting for a paper copy with a per-page reproduction cost, as well as postage. A requester might have to first send a check to cover these costs.

Fulfilling requests in a digital fashion benefits both hard-working public employees and the curious public. It saves time and effort. The cost of reproduction is negligible.

There are other advantages in having a record in electronic form. Reading a 50-page paper study takes a long time, but it takes only seconds to search and find a particular phrase within a document on your computer.

And sometimes the paper copy doesn’t tell the whole story. The term “metadata” describes everything in an electronic document that doesn’t appear on a printed page. This may include, say, the name of the file, such as “Secret Meeting Agenda.docx.” Most files also contain the author’s name and information on when it was created and last modified.

In July 2016, the UW System officials refused to release their annual budget proposal, as they had in past years, claiming it had not been finalized. The proposal wasn’t distributed until 90 minutes before the Board of Regents met to take it up, eliminating any chance for public scrutiny. The metadata revealed that no changes had been made to this allegedly unfinished document since six days before the meeting.

Last month a Dane County judge ruled that Rep. Scott Krug (R-Nekoosa) should have supplied more than a thousand emails in digital form because the requester specifically asked for them in that format. Legislative staff had offered more than 1,500 pages of paper printouts for in-person review at an Assembly office, with copies available at 15 cents per page.

The requester who brought the suit was Bill Lueders, president of the Wisconsin Freedom of Information Council. “The records were virtually unusable in the provided hard copy because they could not be searched,” the lawsuit said.

Lueders requested emails that Krug received from constituents on proposed changes to the state’s water laws. To properly fulfill this request, Krug’s office likely located the responsive emails using the search function within their email program, looking for particular phrases and bill numbers.

Shouldn’t we all have the benefit of this convenience? Providing records in piles of paper makes them less usable and requires requesters to physically travel to where the records are located to avoid paying for hundreds and even thousands of pages of copies. The Legislature’s policy discourages inquiry and prevents an easy examination of public information.

If you want records in electronic form, ask for them that way. And that’s how responsible officials will provide them—with or without the intervention of the courts.

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. John Foust is a Council member and a computer consultant in Jefferson.

Last Updated on Thursday, 01 February 2018 08:23

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