July: Court: You can’t charge a lot for this record

2012 Columns

Bob Dreps

Last month, the Wisconsin Supreme Court powerfully affirmed the state’s tradition of open and transparent government.

In a unanimous ruling, the court affirmed the statutory limits the Legislature placed on public records fees and rejected the argument that requesters can be required to pay “each and every cost incurred by an authority.”

The dispute between the Milwaukee Journal Sentinel and the city of Milwaukee arose from a 2010 request for two weeks of police incident reports, which the newspaper sought to verify officially reported crime statistics.

After producing the first 100 reports without charge, the city demanded several thousand dollars for the staff time required to review and redact confidential information from the remaining records. The newspaper filed suit, arguing that the Open Records Law does not authorize records custodians to charge requesters for performing this task. I was the attorney who represented the paper.

The seeds of this dispute were sown in a 2002 state Supreme Court ruling. In Osborn v. Board of Regents, the court upheld a researcher’s right of access to UW System admission records, saying pupil confidentiality could be protected by removing identifying information. The decision noted in passing that the custodian was “not required, by itself, to bear the cost of producing” the admission records.

In making this point, the court referenced the part of the law that allows charges “for the location, reproduction or photographic processing of the requested records.” But some record custodians, including the city of Milwaukee, believed the ruling expanded their authority to impose fees on public records requesters.

For example, Gov. Scott Walker has asserted the right to “charge the actual necessary and direct cost of removing confidential information” from his office’s records, based on the Osborn decision.

But now the Supreme Court has left no doubt that these custodians have taken language from the Osborn decision out of context. Properly construed, the court held, Osborn does not “conflict with or alter the [Open Records] Law’s provisions governing fees.”

The court recognized that it is the Legislature’s role, not its own, to establish public policy in this area. It said the Legislature “carefully provided” authorization to charge for four specific tasks — reproduction, photographic processing, location and mailing — but chose not to authorize any charge for time spent redacting information. The court “declined to expand the range of tasks for which fees may be imposed.”

This may not be the end of the story. Four concurring justices noted that balancing the burdens and benefits of public access to government records “is a legislative function” and suggested it was an issue the Legislature may want to revisit.

If it chooses to do so, the Legislature would be well-advised to remember the spirit in which our Open Records Law was enacted more than 30 years ago, as reflected in the court’s opinion:

“Wisconsin’s commitment to open, transparent government rings loud and clear in the public records law. The law reaffirms that the people have not only the opportunity but also the right to know what the government is doing and to monitor the government.”

The cost of compliance with the Open Records Law can be tallied in dollars and cents. But the value of open and transparent government is not as easily measured. The Legislature must therefore carefully consider whether shifting more of the cost to requesters would undermine the public’s right to know.

After all, a strong public records law is necessary mainly to learn what the government, at every level, may not want the public to know. All other information the government always has been happy to volunteer.

Your Right to Know is a monthly column produced by the Wisconsin Freedom of Information Council, a nonprofit group dedicated to open government. Council member Bob Dreps, an attorney with the Madison office of Godfrey & Kahn, represented the Milwaukee Journal Sentinel in this case.