January 25, 2018

                    Wisconsin Freedom of Information Council

January 25, 2018 minutes

Capital Newspapers Auditorium

1. Call to order: The meeting was called to order at 2:06 p.m. In attendance were Bill Lueders, April Rockstead Barker, Christa Westerberg, Beth Bennett (by phone), Ivan Moreno, Bob Drechsel, Tom Kamenick, Jason Joyce, Andy Hall, Sean Dwyer, Doug Wojcik, Kyle Geissler, Tom Bier, Orville Seymer, Jonathan Anderson, Mark Pitsch, Bob Dreps, Steve Lovejoy, John Foust, Dave Haynes, Aaron Dumas, Dustin Brown and Paul Ferguson.
   
   
2. Minutes: Minutes from the Oct. 26, 2017 meeting were approved with the following changes: The first sentence of No. 10 states: “Michael King expressed concern about FAA rule PAR 107, which can restrict when, where and how drone flying for news photographer can occur.” The text “PAR 107” should say “Part 107.” The sentence also should be changed to reflect the fact that this rule generally covers flying for commercial use and is not specific to news organizations. Lueders asked Foust to update the minutes and then post them on the website.
   
   
3. Treasurer’s report: Drechsel reported that Foust attended the 2017 NFOIC conference in Nashville. The Council incurred a $1,700 expense by helping pay for an amicus brief in MTI v. Scott. Dues and donation season is upon us. In addition to contributions from sponsors of members, Lueders said the Council would ask for a voluntary contribution from non-sponsored members.
   
   
4. President’s report: Lueders reported that he and Westerberg would present at a Wisconsin Broadcasters Association event on Feb. 24. Sunshine Week is March 11-18; Lueders asked that members spread the word and come up with ways to recognize it. The Council will release the Opee awards the week before Sunshine Week. The Watchdog Awards will be held April 19 at the Madison Club; Andy Hall said the awards would be preceded by a workshop possibly with a session for advanced journalists. Council elections, which occur every other April, will be held during the April 2018 meeting; Dave Zweifel will run the elections. Lueders said this is the Council’s 40th anniversary year and we should do something for it. He suggested creating a planning committee and having an event with speakers. Those who will help plan: Westerberg, Andy Hall, Seymer and Lueders.

• Legislative news:

1. Lueders reported that he is not aware of anything else happening with WCCA Oversight Committee recommendations. The committee voted to limit the amount of time that information about dismissed cases, both criminal and civil, would appear online.

• AB 351 would restrict access to police body camera videos. Newspapers from around the state published good editorials about it. Lueders is not sure whether this will move forward.
  
  
  • AB 448 would have required JFC motions be posted at least 48 hours in advance.
    
    
  • SB 612 would require WCCA to include a searchable database for looking for judges, charges and outcomes. Lueders said the director of state courts office is concerned about the logistics for doing this.

• SB 611 would require DOJ to track information on crimes committed with a firearm, motor vehicle theft and marijuana-related offenses. DOJ raised some concerns but is not against it.
  
  
  • AB 548 would require the files of wrongful convictions be sealed as a matter of course and can only be opened by court order. Lueders said this turns the presumption of openness on its head and also removes info from WCCA. Passed committed on 11-0 vote on Jan. 5. Referred to JFC.
    
    
  • Bennett gave an update on various pieces of legislation.
    
    
• Legal update:
  
  
  • The Wisconsin Supreme Court heard oral arguments in Madison Teachers v. WERC, which the Council filed an amicus brief in along with WNA and WBA. Brown gave an overview on the facts and legal questions at issue in the case. Bier said he attended oral arguments and thought the union would have a challenge convincing a majority of the justices. Lueders said the most troubling outcome would be if the case affirms the notion that a record custodian in the balancing test can and should consider the motives of the requester and even the worst possible way a record can be used. Barker said the case could weaken the public record law’s exceptional standard. Lueders added that there is concern about recovery of attorney’s fees because the records in this case were ultimately provided; Brown said the tenor of oral arguments suggests that may not happen.
    
    
  • There’s an unpublished Court of Appeals decision involving a town accused of violating the open meetings law.
    
    
  • The Court of Appeals is considering Hagen v. Board of Regents, a case involving a UW-Oshkosh professor suing to block release of records about an investigation into him. Westerberg and Dumas are representing a student journalist who requested the records. Case is on an expedited schedule.
    
    
  • Flynn v. Kemper Center is before Court of Appeals. The plaintiffs argue that a tax-supported entity is subject to the public records law. The plaintiff asked the Council for amicus assistance. Westerberg said the case could narrow the definition of a quasi-governmental corporation from Beaver Dam.
    
    
  • Lueders v. Krug: Dane County Circuit Court rules in favor of Lueders in lawsuit against state Rep. Scott Krug over access to emails in electronic format. Foust is interested in writing about this opinion for a YRTK column. Unknown as to whether Krug will appeal. Kamenick said he was not thrilled with judge saying a requester has to explain why he or she needs a record in a particular format.
    
    
• Issues for discussion:
  
  
  • The Council talked about the Legislature’s refusal to release records of investigations into sexual harassment complaints. Lueders said some victims might want the complaints released so action is taken to address the problem.
    
    
  • Council members discussed delays in processing records requests, which Lueders said is especially problematic. There is little clarity in the law about how long is too long. Dreps said the law allows judges to impose punitive damages for egregious delays.
    
    
  • Lueders reviewed various articles about recent FOI issues around the state.
    
    
  • Council members discussed whom to nominate for Opee Awards. Nominations are needed by the middle of February.
    
    
• Website: Foust presented a draft version of the Council’s new website and has been working at migrating the content from the old website’s Joomla content management system to the new WordPress content management system. Tentative plans for rolling out the new site were discussed. Anderson will work with lawyers to update the listing of cases, AG opinions and lawyer Q&A items.
  
  
• Your Right to Know column: Foust will write a column for February about Lueders’ recent court victory in the lawsuit against Rep. Krug over access to emails in electronic format. Pitsch will write a column for March.
  
  
• Other business: The next meeting will be Wednesday, April 11, 2 p.m.
  
  
• 11.    Adjourn: The Council adjourned at 3:47 p.m.