August: Open-records delays common, enforcement lax

2009 Columns

On paper, Wisconsin’s open records law demands some of the highest levels of disclosure in the country. But for the average citizen, gaining access to the workings of government in Wisconsin can become a lengthy ordeal because the law has no deadlines for turning over records.

“The key thing to understand when you look at (open records) statutes is that there’s no enforcement of it, and there’s not a great deal of oversight,” said Peter Gottlieb, chairman of the Wisconsin Public Records Board. “Basically every state agency in all three branches is allowed to do largely what they want to.”

As a doctoral candidate in journalism at the University of Wisconsin-Madison, Jason Shepard conducted a public records audit of agencies across the state in 2008.  Shepard found that one out of 10 records requests were denied or completely ignored by records custodians.

The state Department of Justice recommends that officials respond to records requests within 10 working days, but the law only calls for them to respond “as soon as practicable and without delay.”  But in early
July, Attorney General J.B. Van Hollen declined to specify what  constitutes an unreasonable delay after an Antigo resident asked Van Hollen to weigh in on his open-records request to a local government.
Madison attorney Bob Dreps, who specializes in media law, said Wisconsin courts haven’t clarified the issue.

Some government agencies put records requests on the back burner. A 2008 study by the Better Government Association and the National Freedom of Information Council gave Wisconsin just 41 out of a possible 100 points for response time to open-records requests and the cost and ease of appealing open-records denials, putting it in the bottom half of all states.

“I don’t want to make excuses,” said Jonathan Becker, division administrator at the Government Accountability Board. “But for most state agencies [accessibility] is not their job – they’re building a road or they’re protecting state parks. In their view, it’s sort of taking away from their real job.”

Becker said the burden of processing records requests could be lightened if the state would invest in electronic record-keeping. Some ethics and campaign records have been  digitized, and Becker said he believes the move improved response time and increased the effectiveness of his employees. However, as of last month, the agency continued to struggle with glitches in a new public-access system that’s supposed to provide fully searchable electronic campaign-finance reports.

Becker and others say creating electronic records across state government would require a significant, but worthwhile, investment in openness and efficiency: Gottlieb agrees: “I think it would probably be a pretty big price tag. But I think it can be phased in, and I think you can see some pretty impressive results both in terms of cost savings and in terms of access to public records.”

Cari Anne Renlund, chief legal counsel and records custodian at the Wisconsin Department of Administration, isn’t convinced. “We can’t just get records, scan them into the copier or computer or whatever and send
them to you. It’s nowhere close to that simple,” she said. “We have obligations…to go through every single page and look for all the things we’re not supposed to give you.”

Gottlieb said he believes little will change until Wisconsin has strong compliance requirements and the ability to enforce them. Until then, he said, “we’ll continue to have a very mixed picture of accessibility to
open records.”

Gehan, Mahon, Capener and Zeller are UW-Madison students. Your Right to Know is a monthly column of the Wisconsin Freedom of Information Council,, a nonprofit group dedicated to open government and open meetings.