May: Officials concoct ways to thwart records access

2004 Columns

Why do we need a strong open records law? One answer can be found in the eagerness of some public officials to avoid complying with it.

These officials would rather not have the public looking over their shoulders, second-guessing their decisions. And so they scrutinize open records rulings in search of new ways to rebuff nosy newspaper reporters and curious citizens seeking public information.

In 1996, the Wisconsin Supreme Court ruled that a public employee should be notified prior to the release of sensitive district attorneys records. Soon records custodians throughout the state were citing this decision to frustrate public access to a huge range of records that were once easily obtained, including, in one case, teacher salaries.

It took a legislative fix, signed by Gov. Jim Doyle last year, to improve access.

More recently, records custodians have seized on some imprecise language in a 2002 state Supreme Court ruling to embrace an interpretation the justices almost certainly did not intend. Left unchecked, this interpretation could deny access to citizens of ordinary means in almost any case where a custodian would rather not comply with the clear language of the open records law.

In early April, the Madison Metropolitan School District responded to a request from my newspaper, Isthmus, to see the e-mails and letters it has received from citizens regarding its latest budgetary crisis. The district demanded upfront payment of $613.08, claiming a 2002 case, Osborn v. the Board of Regents, allowed it to charge the full cost of complying with this request, including the time it would take to review the requested records and redact information not subject to disclosure.

Others custodians have cited this decision to make similar claims, in one Milwaukee case demanding a six-figure sum to comply with the law. But seldom has a custodian’s desire to defy the spirit and the letter of the open records law been more baldly apparent.

To begin, the school district has no clear duty to redact anything from e-mails and letters sent to it by citizens. But even if this were necessary, nothing in the open records law allows custodians to charge for this task.

Rather, the law explicitly states that custodians can charge only for “the actual, necessary and direct cost” of making copies and, in some cases, for locating records.

The Osborn decision, in several places, contains overbroad references to the ability of custodians to charge for “complying” with records requests. But nowhere does it say custodians can demand fees for reviewing and redacting. In fact, it expressly asserts and even footnotes the section of the law explaining that the only allowable costs are for copying and location.

Amanda Todd, spokesperson for the Supreme Court, has called the school district’s interpretation of the Osborn ruling “questionable at best.” But that won’t stop custodians from making it. And that’s distressing.

If custodians charge for reviewing records and making redactions, the cost of virtually every record will dramatically increase. Custodians could even convene staff committees or tap their highest paid attorneys to perform these tasks, further driving up costs.

None of this is necessary, proper or defensible. On the same day that Isthmus received the school district’s letter, The Capital Times published a story based on its review of 400 e-mails received by the Madison Police Department regarding the discredited abduction of a UW-Madison student. The reporter, Steven Elbow, asked to see these public records — which number more than the 350 e-mails at issue in the school district request — and they were made available. He reviewed these records and obtained a smaller number of copies, for which he was charged 25 cents per page.

This is the way the open records law is supposed to work.

In response to the school district’s letter demanding outrageous fees, Isthmus and the Wisconsin Freedom of Information Council have asked state Attorney General Peg Lautenschlager for an opinion affirming that the open records law “means what it says, notwithstanding some regrettably loose language in the Osborn case.”

Lautenschlager’s office is now weighing that request. Her duty, in this case, is to defend the public’s right to know. There is reason to be optimistic.

First of all, Lautenschlager is a good lawyer capable of discerning the clear meaning of the law. Secondly, she has personally demonstrated her commitment to openness: When reporters asked to see the e-mails and letters she received in the days following her drunk-driving arrest, the AG’s office promptly made them available, free of charge.

Your Right to Know is a monthly column produced by the Wisconsin Freedom of Information Council, devoted to protecting public access to meetings and records. Bill Lueders is the council’s vice president and news editor of Isthmus.