Problem areas in open government

Uncategorized

As identified by the Wisconsin Freedom of Information Council, September 2024

1. Long waits. The Open Records Law states that requested records must be provided “as soon as practicable and without delay.” It adds that providing access to information “is declared to be … an integral part of the routine duties of [public] officers and employees.” But records custodians often put off requests until it’s convenient, even in situations where timeliness is imperative.

Best practice: Custodians should promptly produce requested records. The state Attorney General advises that simple requests should be answered within ten working days. But many requests can be handled sooner.

2. High costs. The Open Records Law allows custodians to charge only the “actual, necessary and direct cost” of reproducing records, and sometimes the cost of location (when more than $50); charges for reviewing and redacting non-video records are not allowed. Yet requesters are often asked to pay enormous sums because of how broadly custodians interpret the law or the request. And a new law allows law enforcement officials to charge audio and video requesters for the cost of blurring out information.

Best practice: According to Attorney General guidance, reproduction costs should be calculated based on actual purchase or lease prices—typically less than two or three pennies per page, although fees of 10 to 25 cents are the norm. There should be no charge for providing electronic copies. Location fees for staff time should be based on the lowest-paid employee who can reasonably do the work. Custodians should offer to work with requesters to narrow requests and reduce costs. The threshold for location costs should be increased from $50 to at least $100.

3. Closed meetings. State law says public bodies must meet in the open except in certain narrowly prescribed situations, for instance to discuss certain personnel matters or ongoing negotiations in a competitive process. But frequently, members of bodies go into closed session simply because they believe they will be able to speak more candidly that way.

Best practice: Meetings of public bodies should almost always be open to the public. Exemptions to this rule should be construed as narrowly as possible, and detailed notice of closed sessions should always be provided. Governmental bodies should record their closed sessions so any claims of an improper closed session can be objectively reviewed.

4. Vague agenda items. A 2007 Supreme Court decision held that notices must contain reasonably detailed information about the subjects up for discussion, especially on topics of known public interest. Yet some governmental bodies persist in posting vague agenda items.

Best practice: 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” should be avoided in favor of more precise agenda items, including for closed session meetings.

5. Attorney-client privilege. Public officials frequently claim they can close meetings or withhold records simply because their attorneys are involved, which has the clear potential for abuse. Courts have ruled that attorney billing statements are subject to release under the law but other claims of attorney-client privilege go unchallenged.

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 receive sensitive legal advice.

6. 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 on their behalf. Yet custodians sometimes claim draft status extends to any form of a document short of the final version they deem fit for release.

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. Custodians should also release early versions of documents, to show how they were changed as the result of review, reconsideration or outside pressure.

7. Privacy protections. Privacy claims are sometimes used to justify withholding records of public interest, even those affecting public health. Court records in particular often contain sensitive information, yet their availability is usually justified by the serious civil or criminal matters being litigated.

Best practice: Legitimately private information should not be used as a justification for withholding an entire document when the privacy-related information can simply be redacted. The public has a right to see what government officials are collecting, even if it concerns individuals.

8. Rights without remedies. In recent years, court rulings have chipped away at the ability of requesters to recover the costs of fighting wrongful records denials. A 2015 decision denied fee recovery to a requester who sued after being told that responsive records did not exist. A 2022 ruling blocked fee recovery in cases where records are provided after a lawsuit is filed.

Best practice: Be upfront with requesters when the records they seek don’t exist, and don’t delay responses. Ultimately, the Legislature may need to restore the fee recovery mechanism in cases where requesters must sue before records are released.

9. Claims of abuse: An increasingly common argument is that, if information is sometimes abused, it should not be available. This comes up in battles over Wisconsin Circuit Court Access, the state’s online court records system. Claims that data on this site is misinterpreted and misused are propelling legislative efforts to curtail what records are available, and who can see them.

Best practice: If there is evidence that public records are being used to illegally discriminate against others in employment, then prosecutions should ensue, not crackdowns on the ability to obtain public information.

10. Poor organization. Custodians sometimes keep their records in outdated or disorganized ways and then use their own mismanagement as an excuse to charge exorbitant location fees because it takes so long to find anything.

Best practice: Custodians should digitize records where possible and ensure that records are stored in an organized fashion that makes it easy to find what you are looking for. That’s helpful not only for requesters, but for the government employees and officials who need to find records to do their jobs.