April: Shine more light on open investigations

2024 Columns

A horrific scene played out in February in an apartment complex in Middleton, a Madison suburb.

A woman and her two young children had died. The tight-knit community mourned for this family as its members asked: How could this happen?

Several days after the shootings, Middleton police released a statement saying the mother had killed her two children and shot the children’s father before taking her own life. The crime raised questions about mental health issues and whether there had been warning signs in the woman’s troubled life.

To try to give the public more information, the Wisconsin State Journal requested the incident report, any 911 calls related to the incident, and records relating to the original complaint that brought police to the apartment complex that day. (Middleton police were already on scene when they encountered the injured man, who survived the shooting.)

Middleton police denied access, saying it was an open investigation and “no police records” could be released. It did not explain how releasing specific public information might harm their case.

Too often, police agencies in Wisconsin are responding to requests for public information with blanket “open investigation” responses that are not adequately explained or clearly necessary. This denies the media — and the public — pertinent information about crimes that have happened in their backyards.

There is no blanket exemption in Wisconsin’s open records law for records from an open investigation. Records are assumed to be public, but records keepers can perform a “balancing test” between the public’s right to know and the harm that could come from releasing  information.

For instance, they could withhold records that could alert a suspect that authorities are looking for him or her, or reveal information known only to the perpetrator. Those are understandable exceptions.

The State Journal staff and other Wisconsin media understand that there are times when releasing information might be harmful. We have worked with law enforcement to prevent the release of victims’ names before the family has been notified. We don’t want to jeopardize a criminal case or endanger citizens.

But having an open investigation cannot be a blanket reason for denying all public records in a given case.

In the Middleton case, authorities had already said that the suspect had died, so there was no risk of jeopardizing a future prosecution. And releasing information such as 911 calls could give insight into what led up to this tragedy, helping the community better understand the situation or prompting someone in crisis to seek help.

Withholding records and public information can serve to fuel speculation and rumors. A public and open process creates a system of checks and balances that are essential to building trust. It helps the media and community members better understand crime trends and identify issues that could lead to change.

Regrettably, some Wisconsin law enforcement agencies have even denied requests for investigative files on unsolved cases that are often decades old. In late March, UW-Madison police denied the State Journal’s request for records related to the death of Christine Rothschild in 1968, citing an active investigation. The homicide has not been solved in 56 years, and releasing information to the public today might be the only thing that moves the case along.

When applying the balancing test, law enforcement agencies should look at each piece of information they feel would be harmful to their open investigation if it were released, and they should provide in their response to the public records request a reason for withholding that information. If some information does need to be withheld for the sake of an investigation, the rest of the requested information should still be released.

Because of the Middleton Police Department’s vague and blanket rejection, we don’t know if 911 calls related to the Middleton shooting exist, or why police were at the apartment complex that day. And we can’t tell if there was a valid reason for withholding information. And that’s a disservice to the public.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government. Kelly Lecker, a council member, is the executive editor of the Wisconsin State Journal and local news director for Lee Enterprises.