April: ‘Sunshine’ law victories enforce openness

2007 Columns

Wisconsin “sunshine” laws are brightening the halls of government in Wisconsin this spring, and a string of recent victories for the public’s right to know deserves celebration.

These recent cases also should serve to warn local and state officials to not flout open government laws in the first place:

Public meetings: In Milton in southern Wisconsin, officials who tried to cut a development deal in secret got a strong rebuke from an appeals court. The Wisconsin Open Meetings law requires government bodies to meet in public, with a few very specific exceptions. Like other local leaders before them, Milton officials tried to abuse a provision that lets them close meetings for “competitive or bargaining reasons.” Milton officials met in secret 10 times to negotiate over an ethanol plant proposal until it was a done deal. The court made clear that the law’s exception was improperly used.

Employee records: The village of Kronenwetter in north-central Wisconsin has finally turned over all personnel records regarding a village administrator’s firing. The village board unanimously voted to fire the administrator in January but gave no specific reason. After the Wausau Daily Herald filed a lawsuit, the village did what it should have done in the first place: Release documents that raised questions about the administrator’s handling of a financial audit and development deals.

Processing fees: Government always seems to be looking for ways to charge exorbitant fees for records that belong to the public. In a new twist, the Weyauwega-Fremont School District tried to charge the Appleton Post-Crescent $430 to have a lawyer black out large parts of school legal bills sought by the paper, using an often-abused exemption to open records law called “attorney-client privilege.” Instead, the district ended up paying $10,000 to settle a resulting lawsuit; it also released additional records showing the district has spent another $88,870 on attorneys since 2005.

Balancing test: Wisconsin’s open records law includes a “balancing test” that gives officials a chance to argue that the danger of releasing a record outweighs the public interest. The downside: The public needs to fight battles over and over for the same types of information.

On the bright side, the public is winning. Two newspapers recently prevailed in efforts to pry loose state employee records. Dane County Judge Bill Foust backed the Lakeland Times and Milwaukee Journal Sentinel, which challenged claims that new labor contracts require state agencies to withhold the names of public employees. The Lakeland Times also forced a state agency to release records suppressed after a disciplinary probe into a state game warden.

Electronic records: Many government officials fail to maintain e-mail and other electronic data with the same diligence of paper files. This growing problem has been exposed once again during the ongoing investigations into indicted Kenosha business leader Dennis Troha’s dealings with the Doyle administration.

Interestingly, just a day after officials claimed two years of calendar data for Transportation Secretary Frank Busalacchi had disappeared forever, a worker found the calendar data on a state computer server. A newspaper wanted the calendar to help determine whether Busalacchi talked to Troha or his lawyers about some company tax troubles. The calendar released last month doesn’t include a meeting with Troha attorneys.

Independent contractors: Public data held in private hands should be open to the public as well, as the state Court of Appeals reinforced recently when it ordered three southeastern Wisconsin communities to give a real estate service access to property records kept in a privatized computer database. Sussex, Port Washington and Thiensville must pay court costs and legal fees as part of the penalty for claiming they couldn’t release data they turned over to an independent contractor doing assessment work using copyrighted software.

In a time when government officials at all levels routinely deny public information requests and cook up schemes to meet in secret, these cases serve as strong reminders that government business almost always ought to be conducted in the bright light of openness.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), dedicated to open meetings and open records. Kelley and Milfred are editors at the Wisconsin State Journal, Madison.