May: Open Government Problem Areas

2005 Columns

As identified by the Wisconsin Freedom of Information Council

1. High costs. The Open Records Law states that custodians may charge only the the “actual, necessary and direct cost” of reproducing records, and in some cases (when more than $50) of locating records. Yet media and other requesters are sometimes asked to pay exorbitant amounts – hundreds and even thousands of dollars – for access. Some requesters have sought to charge for reviewing records and deciding what information to redact, a practice the state Attorney General’s Office has concluded is not permitted. Other requesters inflate costs by interpreting the request over-broadly, or insisting that it involves creating records not currently in existence. Finally, there is a statutory language requiring exorbitant fees ($1.25 per page) for circuit court records.

Best practice: Records custodians who charge between 10 and 25 cents per page or who waive the fee altogether, as the law allows at 19.35(3)(e)

2. ‘Draft’ status. The Open Records Law contains an exemption for drafts, which it defines as records “prepared for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is working.” But despite the clarity of this language, and case law (Fox v. Bock) and an AG opinion (77 Atty. Gen. 100) affirming it, custodians sometimes claim that draft status extends to any form of a document short of the final version they deem fit for release. They say reports prepared under contract by outside agencies and submitted for review by the office paying for them are drafts. They say reports prepared by one agency and submitted to others for review are drafts.

Best practice: Once a document is shown to anyone besides the originator or a person working on his or her behalf, it is no longer a draft. Records custodians should also release early versions of documents, to show how they were changed as the result of review, reconsideration or outside pressure.

3. Police and prosecution records. Ironically, it is where the power of the state over individual liberty is greatest that problems over access are most severe. Much of the blame owes to a 1991 Wisconsin Supreme Court decision, Foust v. Richards, in which the court declared state prosecutors’ files exempt from the open records law. The court even ordained that prosecutors, who have vast discretionary power over whether and when to file criminal charges, need not respond to records’ requests. Law enforcement soon began treating their reports as secret, too, because they become part of prosecution files. Finally, different agencies have widely divergent policies in this area.

Best practice: Police should allow the maximum access that prosecutors in their jurisdiction will allow. Prosecutors should restrict access only to records that compromise their ability to prosecute a case or the defendant’s right to a fair outcome. And prosecution case files should be public records subject to the balancing test at the conclusion of a case.

4. E-mail records. This is a problem area for records custodians as well as requesters. The Open Records Law specifically includes “electromagnetic information” among its definition of record, and court rulings have consistently affirmed that e-mail and other electronic records must be released on request. But there is little clarity in law or practice as to how long these records must be kept, what systems ought to be in place for storing and retrieving them, and whether and when e-mail communications may violate the Open Meetings Law.

Best practice: E-mails and other electronic records should be maintained as long as practically possible, and each unit of government ought to strive for efficient systems for storage and recovery. Officials need to be reminded that e-mails, including government-related communications on their home computers, are records under the law. This is an area where it would be useful to have clearer standards and direction, perhaps from the Attorney General’s Office.

5. Delays. The Open Records Law states that requested records must be provided “as soon as practicable and without delay.” Perhaps just as importantly, the law says providing requesters with information “is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information.” But custodians often put off requests until it’s convenient, even in situations where prompt access is imperative.

Best practice: Custodians should obey the letter and spirit of the law, and promptly provide access to requested records. Generally speaking, records requests should be satisfied within 48 hours. And it might be necessary to bring legal action against custodians who cause unnecessary delay, especially if done to prevent embarrassment or promote a particular legislative or electoral outcome.

6. Attorney-client privilege. This is becoming a problem regarding both records and meetings access, as public officials are increasingly inclined to claim they have the right to receive advice from their attorneys in secret. Meetings at which matters of public policy are decided have been closed, simply because the public body’s attorney was there to give advice. Records that contain legal advice have been withheld. There is concern that this trend could undercut both the Open Records and Open Meetings Laws, allowing public officials to deny access simply by bringing their attorneys into the process.

Best practice: The exemption for attorney-client privilege should be construed as narrowly as possible, applied only when access would compromise a public body’s ability to negotiate or compete.

7. Quasi-governmental entities. Several recent cases illustrate a troublesome trend of publicly anointed and funded agencies considering themselves exempt from the state’s Open Records and Open Meetings Laws. In the city of Franklin, one such agency actually kept even the mayor in the dark about its negotiations with a major retailer. Similar secrecy attended a deal for a retailer distribution center hammered out by the Beaver Dam Area Development Corporation, prompting Wisconsin Attorney General Peg Lautenschlager to sue, saying a government agency “cannot ‘spin off’ a private entity … then consider itself above the state laws that ensure the public has open access to the public’s business.”

Best practices: Quasi-governmental corporations, as well as bodies “created by constitution, statute, ordinance, rule or order,” are explicitly included in the definition of “Governmental body” in both the Open Records and Meetings Law and must abide fully by the requirements of these statutes.

8. Closed meetings. State law says meetings of public bodies must be open except in certain narrowly proscribed situations, like to discuss personnel matters or ongoing negotiations in a competitive process. But frequently, members of bodies are going into closed session simply because they believe they will be able to speak more candidly that way. In other cases, entire portions of meetings are being closed due to concerns that apply to only a small number of items. And significant discussions of legislative issues continue to occur in closed caucus sessions.

Best practices: Meetings of public bodies should almost always be open to the public. Exemptions to this rule should be construed as narrowly as possible. This is an area in which the state Legislature could show leadership by opening its caucus sessions to the public.

9. Items not on the agenda. A public body needs to publicly notice what items of business it intends to take up, or else it risks running afoul of the law. In 2003, the UW Board of Regents decided to vaguely notice a plan to hike the pay of UW brass as a “statutory required personnel matter”; Attorney General Peg Lautenschlager deemed the board’s subsequent vote illegal, and it was rescinded. In late 2004, the State Elections Board approves a resolution not on its agenda in favor of a state Voter ID bill; Lautenschlager again deemed this illegal and the board rescinded its vote.

Best practices: Public bodies should specifically reference all items of business they intend to take up, so that citizens with an interest in these areas can attend. Vague subject headings like “Mayor’s Report” or “New Business” should be avoided in favor of more precise agenda items.

10. Medical privacy. The Wisconsin Freedom of Information Council agrees that individuals have the right to privacy regarding their medical records and personal health histories. Yet we are concerned that the implementation of medical privacy rules under the federal Health Insurance Portability and Accountability Act (HIPAA) block access to health information that does not compromise personal medical privacy. In some cases, it has become difficult to obtain information about legitimate public-health matters, as when state officials have refused to reveal the municipality or even county where people have been diagnosed with illnesses like West Nile virus or monkeypox.

Best practices: Medical privacy rules should not preclude sharing information with family members or other loved ones, nor should it prevent the release of information about matters of public health, so long as individuals are not specifically identified.

11. Blocked access. This is a perennial issue, faced perhaps most often by photographers. Last May, a Capital Times photographer taking pictures following an accident in Stoughton was accosted by an assistant fire chief who tried to take her camera and, failing that, shoved it in her face. A documentary filmmaker who obtained permission to film in the Walworth County Courthouse in 2003 was arrested and charged with “obstructing an officer” (later dismissed) when authorities changed their minds. The Council recently became aware of a northern Wisconsin town that has an ordinance against taking pictures of public officials performing their duties.

Best practices: This is not Las Vegas. What happens in Wisconsin’s public places does not have to stay here. The public has a right to know and see what is going on. Public officials need to respect the legal right of reporters and photographers to have access to public places.

12. Privacy protections. No one is against privacy, but open records advocates are concerned when privacy claims are used to justify withholding records of legitimate public interest. Court records in particular often contain information of a personal nature, yet their availability as a public record is usually justified by the serious civil or criminal matters being litigated. Concerns about privacy have led to federal legislation constricting access to driver’s license information. At the state level, a recent revision to the Open Records Law meant to improve access has resulted in certain personally identifying information being routinely blacked out.

Best practices: Custodians need to recall the Open Records Law’s declaration that “all persons are entitled to the greatest possible information,” not search out excuses to withhold it. Moreover, if a record is too private for the public to see, why are government officials collecting it?

13. Lack of awareness. One overarching issue for openness advocates is the lack of public awareness of our issues and our motives. Example: Many ordinary citizens are shocked when media outlets seek autopsy records and photos. But the intention is not to publish these images but to verify what public figures – i.e., coroners – have represented to the public. (This is especially critical for deaths of persons in custody.) Even in more mundane matters, the public often perceives that records are sought out of nosiness, when there are legitimate reasons. In fact, the media generally exercise good judgment about what to report, as when they voluntarily protect the identities of sexual assault victims.

Best practices: The media and other advocates of openness need to do a better job of explaining their interest in public information, and to highlight the discretion they exercise as to its dissemination. We need to more clearly convey that the Open Records and Open Meetings Law exist for the benefit of all citizens, not just members of the press and others with a professional interest in the affairs of government.

Your Right to Know is a monthly column produced by the Wisconsin Freedom of Information Council, a media group devoted to protecting public access to meetings and records.