September: Ask candidates about openness

2010 Columns

Complaints about secrecy in government tend to come after important information has been withheld. Wouldn’t it make more sense to clear the path to open government early on – before an official is elected?           

With fall elections approaching, it is a good time to ask candidates what they would reveal – or not reveal – if and when they are in office.           

Such questions are especially important in the case of candidates for district attorney, since their records were declared exempt from disclosure by the Wisconsin Supreme Court’s 1991 ruling in Richards v. Foust.           

At issue in that case was a request by an inmate named Harlan Richards to inspect the closed prosecutor’s case file of a criminal action against him. Dane County District Attorney Bill Foust failed to respond, and a circuit court judge ordered Foust to grant Richards access to requested records.           

But the Supreme Court ultimately decided that prosecutors enjoy a common law exemption to the open records law. It ruled that the district attorney has broad prosecutorial discretion and that “access to data collected and placed into prosecutor files is not open to indiscriminate public view.”           

In a strongly worded dissent, Justice Shirley Abrahamson argued that “a prosecutor’s closed case files are records subject to the public records law.” She said the majority reached its decision based on open cases, not closed case files, and that there is no statutory or common law limitation on public inspection for closed case files, though documents can be withheld if releasing them would have a harmful effect on the public interest.           

The Wisconsin Freedom of Information Council contends police and 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 all records should be presumed public, subject to a balancing test of the effect of disclosure on the public interest, at the conclusion of a case.           

In 2005, while signing a Sunshine Week proclamation, Gov. Jim Doyle, a former state attorney general, made the same argument. He said that, even after the Foust decision, his office continued to treat prosecution files as open records.           

“When I was attorney general, we lived by the basic balancing test, which is that, if there’s an investigative file and there is legitimate reason that it can’t be disclosed, then it can’t be disclosed,” Doyle said. “But certainly at the conclusion of the case, it should be a public record, again,” though certain sensitive information, like the names of an undercover informant, could still be withheld.           

Doyle continued: “I don’t think anybody prior to Foust … thought that there was some kind of common-law exception to the public records [law].” But since the ruling, he noted, even police reports have become harder to obtain, if they become part of a prosecutor’s files: “[T]he police department sends the record up to a prosecutor and suddenly it’s all closed. And I don’t think that’s the way the law should be.”           

Luckily, district attorneys still have the option of disclosing some information voluntarily, and some continue to do so. That is why all candidates for that post should be asked to commit to some level of openness with regard to their files.           

Those running for other positions – such as other county offices or the state Legislature – should also be asked their stance on open government. It is in the public interest for citizens to be informed about government activities, to help them fulfill their responsibilities in a democratic society. 

Your Right to Know is distributed by the Wisconsin Freedom of Information Council (, dedicated to protecting open meetings and open records. Longtime reporter Anita Weier is a group member.