April: AG’s office could do more on openness

2014 Columns

Should enforcement of Wisconsin’s open records and open meetings laws depend on individual citizens having to file often costly and protracted lawsuits?

That is one option prescribed under these laws, and those who prevail in such cases can recover attorney’s fees.

But the laws also contain provisions intended to help people resolve disputes in a cheaper and less complicated way: Citizens can ask the state attorney general or county district attorney to sue a government authority, and any person can seek advice from the attorney general.

Yet, more than three decades after the Legislature enacted these provisions, questions about their effectiveness remain.

Gannett Wisconsin Media recently highlighted the cases of citizens who, after being brushed off by prosecutors, successfully sued public officials for violating open-government laws. Gannett’s stories also noted that Attorney General J.B. Van Hollen has not filed a single lawsuit to enforce compliance with these laws, while his predecessor, Peg Lautenschlager, had filed just a few such cases.

The stories shed much-needed light on how difficult it can be to fight improper government secrecy. They also touched on a broader problem: Hard data on disputes brought to the attorney general and district attorneys is almost nonexistent.

I’m writing this column to help fix that.

Recently, I completed a master’s thesis in media studies at the University of Wisconsin-Milwaukee on how the attorney general’s office has handled complaints about the public records law. I analyzed documents from more than 300 public records disputes during a six-year period. I also interviewed 17 people involved in those disputes.

Here is what I found:

  • The attorney general’s office denied every request for legal action, but such requests accounted for just a quarter of cases. Most of the time, requesters sought advice.
  • Nearly half of the cases directly concerned whether a requester had a right to a record. Other common issues included response times, fees and definitions in the law.
  • Cases overwhelmingly involved local authorities as opposed to state government.
  • The office was relatively timely, responding to nearly three-quarters of requests within 30 business days. Still, the range of response times varied widely — from within a week to nearly a year.
  • The office at times actively worked with parties to mediate disputes, though the degree of that engagement was inconsistent.

Ultimately, the findings confirm that the attorney general can play a meaningful role in helping citizens use the public records law and challenge improper government secrecy without litigation. At the same time, the study revealed complaints about and drawbacks to how the attorney general handles disputes.

For one thing, the study highlighted how difficult it is to track what kinds of complaints are being received and what is being done about them. In Gannett’s reports, a spokesperson for Van Hollen said the attorney general’s office does not track open-government complaints. That should change.

The office should regularly report caseload statistics about requests for assistance on the public records and open meetings laws, as do other states, including Pennsylvania and Indiana.

The office should also actively publish open-government correspondence containing noteworthy advice. It has not done so recently or on a routine basis.

Such action would enable citizens to monitor developments in the public records and open meetings laws, and to assess how the attorney general is handling disclosure disputes.

That is information everyone has a right to know.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Jonathan Anderson is a reporter for The Lakeland Times in Minocqua. His thesis is available online.