March: When officials become “draft” dodgers

2005 Columns

Former newspaper editor Peter Fox recalls the “sick feeling” he got when he discovered his newspaper had been misled by Racine County officials who were withholding a much-anticipated report on problems at the county jail.

It was 1987, and rumors abounded that a report commissioned by the county’s corporation counsel examining overcrowding and dangers at the jail had been finished. Yet a reporter at Fox’s newspaper, the Racine Journal Times, was consistently told by county officials the report was not a public record because it was still in “draft” form.

When officials started making changes at the jail in response to the so-called draft, Fox and his newspaper decided it was time to let the public in on the secret.

The Journal Times filed a motion in Racine County Circuit Court to force release of the document. It was there, under oath, that a county official acknowledged taking steps to ensure that the public, which had paid for the report, would never see it.

Fox, now executive director of the Wisconsin Newspaper Association, called it a “deliberate attempt…to circumvent the (state) open-records law.”

The case went all the way to the Wisconsin Supreme Court, which in 1989 ordered Racine County to turn over the report – and further defined when a document graduates from being a draft to a public record.

The state’s Public Records Law does allow officials to withhold “drafts, notes, preliminary computations and like materials.” But in the Fox case, the Supreme Court found that officials’ efforts to keep the report secret – by labeling each page “draft,” withholding small corrections so the report was never finalized and keeping copies of the report with the out-of-state consultant who wrote it – did not turn the finished report into a draft.

Unfortunately, more than 15 years after that ruling, some Wisconsin officials are still trying to use the “draft” dodge to withhold public records. Consider these recent incidents:

  • In the fall of 2002, then-Gov. Scott McCallum attempted to label a schedule of his past meetings and events a “draft” to avoid releasing it to the Wisconsin State Journal. The schedule was quickly turned over after the newspaper threatened to sue.
  • In 2003, a legislative agency kept members of the public and even some lawmakers from seeing drafts of the so-called Job Creation Act, which made significant changes in Wisconsin’s environmental regulations, even though some lobbyists had seen them. Wisconsin Attorney General Peg Lautenschlager issued an opinion that once copies of proposed bills go beyond the legislators who ask for them, they lose their “protected status and must be released upon request.”
  • Late last year, the state Department of Transportation released after a six-month delay a report showing in-house engineers were 18 percent cheaper than contracted engineers, arguing the report wasn’t done. The report – dated in April but released in November – cast doubt on the cost effectiveness of Gov. Jim Doyle’s efforts to cut the state work force by outsourcing some government jobs.

So when is a public document no longer a draft? The Supreme Court and previous attorneys general have weighed in on the issue and concluded that a public record isn’t a draft when:

  • It has been circulated beyond the preparer’s level of authority; and
  • When it is used for the purposes for which it was commissioned, as in the Fox case.
  • Fox knows what it’s like to be on the other end of a public-records request, having served as secretary of the state-employment relations department and director of public information for the UW System. He said Racine officials honestly believed they were “acting in the best interest of the people” by keeping the report secret.

But, said Fox, “In my opinion, it was a misguided belief.”

Your Right to Know is a monthly column produced by the Wisconsin Freedom of Information Council, a media group devoted to protecting public access to meetings and records. Hall is a reporter for the Wisconsin State Journal in Madison and a member of the council.