Last Updated on Wednesday, 29 June 2016 11:36
Last year on July 2, the state Legislature launched a sneak attack on Wisconsin’s open records law, effectively seeking to exempt legislators from its reach. That effort died following a huge public backlash. But some lawmakers, it’s clear, remain actively hostile to the state’s tradition of open government.
One ongoing effort to duck accountability concerns records of communications to legislators. In 2014, a state appeals court ruled that state Sen. Jon Erpenbach, D-Madison, must release not just the messages but the names and addresses of people who had contacted him on a given issue, which he had tried to shield.
“Public awareness of ‘who’ is attempting to influence public policy is essential for effective oversight of our government,” wrote Judge Mark Gundrum, a former Republican state lawmaker, for the court. Citizens have a right to know who contacts elected officials “in favor of or opposed to proposed legislation.”
As a reporter, I have obtained correspondence to lawmakers showing overwhelming public support for failed proposals to toughen drunken driving laws and embrace nonpartisan redistricting. Sheila Plotkin, a resident of McFarland, has documented that lawmakers disregarded the vast majority of input they received on altering campaign finance rules and dismantling the state Government Accountability Board, among other issues. See her website: we-the-irrelevant.org.
Recently, Plotkin has been looking into citizen correspondence to legislators regarding proposed water legislation. The office of Rep. Scott Krug, R-Nekoosa, provided her with multiple records of its own creation that listed the names and addresses of people who wrote in on this issue, with the nebulous notation, “Wants high capacity wells/CAFO’s/ground water reform.”
As she recounts in a web post, Plotkin called the office and spoke to Krug aide Dan Posca, who said this vague designation could mean either that the person was for the identified bill, or against it. It was impossible to tell.
I repeatedly tried to talk to Posca about Plotkin’s post, without success. Krug told me the vague wording was used because “there were hundreds of variations of things people wanted done.” He claimed all of the emails he received were provided to Plotkin, besides the summary records created by his staff.
Not so, says Plotkin, who found multiple instances where the office’s vague record lacked a corresponding email. For instance, she couldn’t find her own email to GOP lawmakers, sent Feb. 3, urging them at length and in detail to “Vote NO on these bills.” The office provided only its internal record, dated Feb. 5, logging a contact from a Sheila Plotkin who “wants … reform.”
What had been perfectly clear was rendered purposefully oblique, to make it harder for the public to see that its input was ignored. For shame.
In fact, Krug and other lawmakers can freely destroy the correspondence they receive, replacing it with their own records or nothing at all, because legislators are exempt from retention rules in place for everyone else in state and local government. According to The Associated Press, Senate Majority Leader Scott Fitzgerald, R-Juneau, deletes his calendar on a daily basis, evidently to keep the people who pay his salary from learning how he spends his time.
That needs to change. Citizens and media should demand an end to this loophole, raising this issue with legislative candidates. State lawmakers do not deserve the ability to destroy public records to protect 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. Bill Lueders is the group’s president.
Dear Council members and supporters,
This is to make you aware of developments regarding access to online court records, especially an open rules conference this morning (May 12) before the Wisconsin Supreme Court.
The court voted 5-2 to dismiss a rules petition from the State Bar of Wisconsin from 2009. But it did so with the understanding that the petition would be refiled, giving it a fresh opportunity to take this issue up again. Chief Justice Roggensack and Justices Prosser, Ziegler, Gableman and Rebecca Bradley voted in favor of dismissal, to pave the way for a fresh petition. Justices Abrahamson and Ann Walsh Bradley voted against.
That 2009 petition called on the court to significantly increase the availability of expungement of criminal cases, including the removal of information from WCCA, the state court's online records system.
Earlier this year, the court deadlocked 3-3 on a similar motion, with Justice Prosser voting against dismissal and Justice R. Bradley not participating . But Justice Prosser brought a motion for reconsideration and this time voted to dismiss, joined by R. Bradley, who said she had since been able to review petition-related materials.
The Council has long supported public access to online court records and fought against efforts to remove information. I need not recount the various arguments in favor of openness, which have also been sounded by business groups and the state Department of Justice, as in this filing. What is troubling about today's proceeding is the extent to which the justices, despite their differences, which at times were scarcely coherent, seemed to agree on the need for changes to remove certain information from the system.
Several justices spoke about the parade of citizens who came before the court in 2010 to attest to the various ways that WCCA, which everyone calls CCAP, has ruined their lives. None of these claims were subjected to even the most rudimentary investigation to determine their credibility, and, as I have reported in the past (as in here and here), at least some of these claims have been shown to be untrue.
The justices demonstrated a wholesale willingness to believe these unproven claims, as when Prosser said that repercussions to people on WCCA occur "often in situations where they were not involved and are found not guilty." That the records system would provide clear and irrefutable confirmation of a not guilty verdict apparently was not deemed relevant.
Rebecca Bradley noted that the actions called for in the petition seemed "quite legislative in nature," which would be a big no-no for a court dominated by people who vow to never legislate from the bench. But she voted to dismiss to entertain a new petition.
Even the two justices who voted no seemed open to restricting access. Ann Walsh Bradley said she opposed the motion to dismiss because "it is our responsibility to solve this problem."
In addition to the court's interest in revisiting this issue, possible restrictions to records access are being presented on three other fronts:
- The director of state courts is now pulling together a new WCCA oversight committee, to work out issues related to moving to all-electronic records-keeping in the state circuit court system. This committee was mentioned during today's hearing as another way in which perceived problems stemming from access to court records might be addressed. I have been asked to serve on this committee but do not know to what extent advocates for open records will be otherwise represented.
- A Legislative Council committee chaired by Sen. Alberta Darling will look at ways to reduce recidivism and remove impediments to ex-offender employment, which will likely include calls to shield online court records. The membership of this committee has not been announced.
- Finally, a bill to expand expunction introduced late in the current legislature session will almost certainly be reintroduced in 2017-18. The bill, AB 1005 in its current incarnation, would allow any person on the receiving end of a criminal charge that was dismissed or which led to a finding of not guilty, or was overturned on appeal, to petition a judge for expunction, including records removal. This would pertain to past cases without limits on when the charge was filed or the age of the person. O.J. Simpson would be eligible if he had been tried in this state.
So that's what's happening with regard to online court records. Current levels of access are very much at risk. Continued vigilance by advocates for open government is essential.
Last Updated on Wednesday, 01 June 2016 10:51
A Wisconsin court of appeals has finally put to rest some of the questions over what information must be withheld under the federal Driver’s Privacy Protection Act, or DPPA. Its recent decision ends years of confusion in a way that squares with the state’s traditions of openness — and with common sense.
The DPPA was enacted more than two decades ago to restrict the release of personal information from DMV records. It was never meant to prevent police from releasing basic information in accident reports and other law-enforcement records.
But that was how the law was interpreted in much of Wisconsin. In recent years, following a federal court ruling in an Illinois case, concerns over liability have led some law enforcement agencies to heavily redact (black out) reports before releasing them — limiting their news value and hampering public oversight of police.
In its May 10 decision, Wisconsin’s 3rd District Court of Appeals held that accident reports need not be redacted to comply with the DPPA, because state law expressly mandates their disclosure. Personal information obtained from other sources and merely verified with DMV records may also be released.
I was one of the attorneys, along with Bob Dreps, who represented a newspaper that filed the lawsuit that led to this ruling. The case was brought by the New Richmond News against the city of New Richmond.
Congress passed the DPPA in 1994 after a television actress was murdered by a stalker who obtained her home address from a local DMV. The law’s intent is clear: DMVs, with their vast repositories of personal information, cannot disclose that data except for one of 14 “permissible uses.” The same restrictions apply to other agencies that use DMV data.
But then, in 2012, the village of Palatine, Illinois, was threatened with liability for printing vehicle owners’ personal information — obtained from DMV records — on parking tickets placed on car windshields. The Palatine case caused some police departments in Wisconsin to start redacting records, prompting the New Richmond News to file suit.
In the end, reason won out in Palatine. The courts ultimately ruled that disclosing personal information on parking tickets was allowed because the police department used the information in carrying out its functions — one of the 14 “permissible uses.”
Reason should also win out in Wisconsin, although this may not happen right away. Whereas the court of appeals ruled accident reports must always be accessible, it also concluded that personal information obtained from DMV records and incorporated into incident reports can only be disclosed if doing so serves a function of the police department — a question the case was remanded to the circuit court to resolve.
The public has a legitimate right to law enforcement records, which are of little value if scrubbed of names and addresses. How can the public know if laws are enforced equally and appropriately if the identities of the people involved are obscured?
Ideally, the common-sense approach adopted by the court of appeals will serve as a blueprint for addressing the questions that remain — without further litigation.
Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Dustin Brown is an attorney at Godfrey & Kahn, S.C.
Last Updated on Monday, 02 May 2016 09:12
Two years ago, the Fond du Lac School District unveiled new guidelines requiring administrative review and approval before the publication of any student media. The reaction by students was swift, democratic and effective.
Within days, they had publicized the change online, presented their case at a school board meeting, appeared on local media, and gathered several thousand signatures on a petition calling for student publications to be returned to the students. Over the next several months, they highlighted the district’s use of these guidelines to block the publication of particular photos and information.
These efforts succeeded. The district agreed to convene a group of student journalists and educators to craft a new policy. By the next school year, the restrictive guidelines were gone.
The passion for the free flow of information and Constitutional rights displayed by these students stands as a prime example of the power of a journalism education based on student responsibility and ownership. But efforts to stifle student speech remain.
Recently, a principal in Chicago censored a story about the school’s new starting time, at one point threatening to kill the publication entirely. Student journalists in Missouri were told they must submit a story about their superintendent’s resignation to the principal for editing. A student journalist in West Bend, Wisconsin, reports being barred from writing about certain topics.
And in many schools, the looming possibility of administrative overreach leads students to censor themselves, back down when challenged, or abandon student publications entirely.
This should not be happening. While schools must maintain an effective learning atmosphere, they do not have the right to suppress information they simply do not like. Court cases have made clear that students maintain their First Amendment rights of free speech at school.
Unfortunately, a 1988 U.S. Supreme Court ruling (Hazelwood School District v. Kuhlmeier) established that schools could review and possibly restrain speech if related to legitimate educational purposes. Many school districts have over-applied this highly subjective standard.
Once a principal is allowed to pre-approve student journalism, it is inevitable that he or she will find things to change to make the expression more “positive” or more aligned with what the principal wants to say. This does not teach journalism or citizenship. It teaches that authority figures—government officials, in the case of public schools—decide what ideas can be discussed.
Since Hazelwood, eight states have passed laws clearly establishing that student publications belong to students, who are themselves responsible for deciding what to publish. North Dakota passed one such law unanimously last year, and more than 20 other states are looking to join them.
These bills, termed New Voices laws, do nothing to limit a school’s ability to prohibit illegal or harmful speech. But they do let students perfect the power of their own voices and explore the benefits of the free flow of information in a democracy.
Students in Wisconsin deserve a New Voices law of their own. The effort to do so here, known as Supporting New Voices of Wisconsin, has been getting media attention and editorial support.
In the next legislative session, we hope state lawmakers will help ensure that the rights of student journalists are clear and that schools are using student publications for student learning, rather than to promote the agenda of government officials.
Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Matthew Smith, a teacher at Fond du Lac High School, is a coordinator for New Voices of Wisconsin.