Wisconsin Freedom of Information Council

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August: Finalists’ names should be made public

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When the Oconto Police and Fire Commission said in April that it had interviewed two finalists for the open position of chief of police, Kent Tempus of the Oconto County Reporter asked who the finalists were.

It was a simple request, made under the part of Wisconsin’s open records law that requires the naming of final candidates for public offices.

The answer should have been simple, too – but it wasn’t.

City Administrator Sara Perrizo not only refused to name either candidate but said the commission had already voted to hire one of them. She said no announcement would be made until the City Council approved the hiring, two weeks later.

In an email, Oconto City Attorney Frank Calvert had the nerve to write, “I am not aware that the Police & Fire Commission has declared anyone, at this point, to be a Final Candidate as regards the Police Chief position.”

Think about that for a second. It means the attorney didn’t consider the candidate that the commission recommended for hire to be a final candidate.

At that point, the paper and its parent organization, USA TODAY NETWORK-Wisconsin, hired an attorney to intervene. After a week of back and forth, Perrizo identified the candidate recommended for hire, but still refused to identify the other candidate. The media organizations had enough and sued. Hours after the suit was filed, the city released the name of the other candidate.

Having spent thousands of dollars on legal fees to right the wrong, the media organizations sought reimbursement of their legal costs, as the records law allows. In the end, the city’s insurance company agreed to pay $3,000 – less than half of the fee total.

None of it needed to happen. The law regarding finalists for top positions is clear. And it was clearly violated.

The final candidates provision applies to all local and state public positions; the University of Wisconsin System was largely exempted from the law in 2015. Its purpose is to ensure that the public knows who its government is considering for key positions — and what kind of baggage they might bring to the job.

Consider the three finalists named in July for the position of city administrator in Rhinelander. One of them, former Weston village administrator Dan Guild, had been suspended for 30 days by the village board for what the board called a breach of his employment contract. Another finalist – St. John, Indiana, town manager Steve Kil – was charged in 2015 with stealing yard signs that called for his firing.

Whenever there are at least five applicants for a public position, the law says the names of “each of the five applicants who are considered the most qualified” should be released. Yet Oconto ended up naming only the two finalists it seriously considered. In a similar situation in 2004, the state attorney general concluded that a school district should have released the names of all candidates interviewed for a given job.

Another problem is that the law doesn’t specify when the finalists’ names must be released. As a result, some authorities have tried to dodge its intent by not releasing the names until after a selection is made. The Legislature should close this loophole.

The bottom line is that the finalists law exists for a reason: the public interest in key hiring decisions. Yet it’s a law that is routinely disregarded.

The public deserves better.

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 a council member and the consumer experience director for USA TODAY NETWORK-Wisconsin.

Last Updated on Wednesday, 01 August 2018 12:00
 

July: Don’t shut down access to court records

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A few weeks back, while looking into a court case in Waukesha County, I went to the court’s website seeking contact information. There were a few phone numbers but no email addresses. So I called one of the numbers and asked for the judge’s email address.

The judge’s office wouldn’t give it to me.

Given that judges and other court employees use a government email address, I decided to file an open records request, seeking the email addresses of everyone who uses the domain address wicourts.gov, which is administered by the court system.

The response I received from Randy Koschnick, the director of state courts, was chilling: “The Wisconsin Supreme Court intends to decide whether the state court system is subject to the open records law,” he informed me. “The issue is currently under consideration by the Court.”

This was certainly news to me. In response to my follow-up query, Koschnick said there was no pending case regarding this matter, but that the issue has risen recently “so the court has determined that it is appropriate for the court to address it.”

No one I contacted seemed to be aware that the state’s highest court was, on its own initiative, deciding if it could essentially exempt itself from state law, much as the Wisconsin state Legislature tried to do in 2015. That effort was abandoned after a huge public outcry.

The state’s open records law explicitly lists “any court of law” as among the entities that are subject to its provisions. The only way the courts could decide they weren’t covered, it seems, would be through a separation of powers argument — essentially, that the state Legislature has no authority to tell the courts what to do.

If that’s the case, the courts could theoretically exempt themselves from any other law.

My efforts to seek clarification and my request to speak to Chief Justice Patience Roggensack have been ignored. But another court official, spokesman Tom Sheehan, was quoted as saying the court is only considering whether the email addresses have to be released. He cited a “substantial risk" of litigants improperly communicating with judges, which could lead to the need for judges to disqualify themselves.

The email issue is a red herring. If an email is on an inappropriate topic, it can be ignored the same as the judge can ignore any other communication. Obviously, some court officials would prefer to remain inaccessible. Probably so would a lot of mayors and state lawmakers. But this is Wisconsin, where we supposedly believe in open government.

Some judges routinely use their emails, and in most cases their email addresses are easy to figure out. In Waukesha County, all you have to do is put a period between the first and last name and add @ wicourts.gov and voila! If the court really felt that access to email addresses is a threat to justice, why hasn’t it banned judges from making their email addresses public?

For the state’s highest court to exempt itself from the state law on access to records would be an abusive power grab. If that’s what's being considered, Roggensack and the other justices first need to explain themselves.

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. Mark Belling is a radio talk-show host in Milwaukee.

Last Updated on Thursday, 28 June 2018 07:24
 

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
 

June: Don’t chip away at records access

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One great thing about Wisconsin’s open records law is that it’s not supposed to matter who wants records or why.

The law, enacted in 1983, asserts that no state or local government office may deny a request because the person making it “is unwilling to be identified or to state the purpose of the request.”

This is an important principle, because access to public information should not be limited to people whose motives have been deemed pure. In fact, citizens and political parties often use the law to scrutinize public officials and political opponents. That’s how it should be.

A few years back, the primary author of Wisconsin’s open records law, former state Sen. Lynn Adelman, now a federal judge, told a group of open government advocates that he was prepared to kill the entire bill rather than accept an amendment that would have removed this ability to make anonymous requests. Public records, he felt, needed to be public to all.

Over the years, this ideal has sustained damage. In 1996, the state Legislature limited the ability of incarcerated persons to make records requests. In 2005, the Wisconsin Supreme Court ruled that an alleged sexual harasser could be denied access to unredacted records regarding complaints against him. In 2014, a state appeals court backed up a school district that refused to provide records regarding one of its employees to a man with a history of violence against her.

These are tough cases; inmates, harassers and abusers are not sympathetic figures. But we must be careful about denying access to records based on who is asking.

In late 2016, the Wisconsin Supreme Court upheld a state agency’s decision to deny a request for training videos, ostensibly to protect sensitive law enforcement techniques. The decision’s author, Justice Rebecca Bradley, noted in passing that the records requester, the Democratic Party of Wisconsin, had a “partisan purpose” in making its request.

That’s troubling, because the requester’s purpose shouldn’t matter—and, it can be argued, still does not, despite Bradley’s careless wording. If Democrats can be denied access because they are partisan, so can Republicans. Or anyone.

Earlier this year, the state Supreme Court ruled against a labor union that sought records to help secure votes in a recertification election. The court’s conservative majority accepted arguments, unsubstantiated by any evidence, that the union might use these records to harass. Justice Ann Walsh Bradley, writing in dissent, called this a “concocted concern.”

This case involved a particular set of circumstances, and its reach should not apply to other requests. But we must remain wary about taking any requester’s identity or motives into account. That provides a too-easy out for officials looking for excuses to keep public information under wraps.

To quote from the law, “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” All persons — not just those the government likes.

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, is is the group’s president.

Last Updated on Thursday, 28 June 2018 07:13
 

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
 

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