Possible changes in law or policy to increase transparency, as identified by the Wisconsin Freedom of Information Council
Updated February 2021
Recording of closed meetings
Currently, there is no way to know whether public bodies are going into closed session for legitimate reasons. The Council favors a statutory requirement that closed meetings be recorded on audio or video, allowing for in camera review if their legality is challenged. Other states, including Iowa and Illinois, have similar statutes. No legislation to accomplish this has been introduced in Wisconsin.
Make state lawmakers subject to state records retention rules
Current state law prescribes mandatory minimum retention rules for all state and local government officials, except members of the Legislature. A city engineer in a small city must preserve correspondence but a state lawmaker can destroy it at will. The law should be changed to end this exception, as one lawmaker attempted to do in 2011. In the meantime, lawmakers should be challenged to voluntarily retain relevant records.
Make the Legislature subject to the state’s Open Meetings Law
The state Supreme Court, in its 2011 ruling Ozanne v. Fitzgerald, decided that the Legislature’s adherence to the Open Meetings Law is not subject to judicial review, effectively exempting the Legislature from the law. The Council supports legislation to make the Legislature explicitly subject to the law, including a constitutional amendment and a series of proposed rule changes introduced in the 2015-16 session.
Eliminate open meetings exemption for legislative caucuses
Efforts to end the ability of legislators to meet as a caucus in secret receive occasional media support, but legislative proposals to accomplish it, including AB 104 in 2013, have gone nowhere. The latest attempt is AB 153, introduced in April 2015.
Require that all legislative proposals have an identified sponsor
In the past, lawmakers have used omnibus bills introduced by committee leaders and other strategies to avoid being associated with controversial proposals, like those unveiled in July 2015 to gut the state Open Records Law. The state Legislature should prohibit any rule, motion, bill or amendment from being introduced without a clearly identified sponsor and cosponsors.
Update the location cost threshold
When the state’s Open Records Law passed in 1981, it stated that custodians could charge only for location fees of $50 or more. The clear legislative intent was to give requesters an initial $50 of free location effort, reserving this charge for larger requests. Adjusted for inflation, $50 in 1981 would be nearly $150 today. The Council supports updating this amount, as Gov. Tony Evers has proposed.
End loophole in finalist disclosure law
Wisconsin’s open records law requires, at 19.346(7), that public bodies disclose the names of finalists, typically at least five, for most non-classified state positions, or for any local public office, as defined by statute. (This provision was regrettably altered in the 2015-16 budget to exempt the University of Wisconsin from the need for full compliance.) The law does not specify when these names must be released, prompting some authorities to wait until after a selection is made. This is a loophole that should be plugged.
Amend “Woznicki statute” to avoid delays
The so-called Woznicki statute (19.356) requiring custodians to give advance notice of their intention to release records concerning certain individuals is intended to be a fast process. But individuals who want to block release of records can sue the custodian who wants to release a record but then delay service of the summons and complaint. And so while the statute requires the court to make a decision within 10 days of service, general rules of pleading allow service as late as 90 days after the suit is filed, thus turning a 10-day turnaround into a 100-day turnaround. A good fix would be to tie a decision to the date of filing the summons and complaint, or shortening the normal 90-day period for service in Woznicki cases.
Mandatory disclosure by certain users of online court records
Since it went operational in April 1999, the state’s online court records system, commonly called CCAP, has faced repeated legislative attempts to restrict what information is available. A common charge is that landlords and employees are using the system to unfairly discriminate against applicants. The Council supports a provision, introduced as part of a failed 2013 bill, AB 253, to require users who deny applicants housing, employment or accommodations to applicants based on information in the system to disclose this.
End the exemption for prosecutor records
A 1991 Wisconsin Supreme Court ruling declared prosecution files exempt from the public records law. In 2005 then-Gov. Jim Doyle, a former state attorney general, announced his support for ending this exemption, but no legislation to accomplish this has been introduced.
Modernization proposals:
1) Ban electronic chatter — emails, text messages and instant messages — by members of deliberative bodies during meetings, if these concern the substance of the issues under discussion. (This would still allow non-substantive communications, and purely personal communications.)
2) Require that when public officials use email or other electronic communication methods to conduct government business, they do so using official government accounts, when available, not personal accounts, to facilitate the archiving of these communications.
3) Establish consistent rules for the retention of electronic communications. Require that all electronic communications involving government business be preserved for public inspection for the same statutory retention period as paper communications — that is, not less than seven years.
4) Establish that records custodians can charge only for the “actual, necessary and direct” cost of reproducing records in electronic form, not the corresponding fees for providing paper records.