Christa Westerberg, an attorney with McGillivray Westerberg & Bender, is the vice-president of the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government.. She also serves as legal counsel to the Wisconsin Center for Investigative Journalism.
Just shy of two years ago, this column explored the heightened importance of open government when public health is at risk. Multiple examples showed the government was not sharing timely information with the public, or even other branches of government, on issues such as clean drinking water and chronic wasting disease.
Wisconsin’s open government laws were meant to strengthen our democracy by ensuring an informed electorate. But, sometimes, transparency is about more than democracy—it is about human health, with serious consequences when transparency fails. Earlier this year, the Milwaukee Journal Sentinel reported that the city of Milwaukee had failed to alert thousands of families whose children had blood tests indicating elevated lead levels. Lead from water pipes and old paint is a significant public health risk in Milwaukee and elsewhere, causing cognitive damage and other problems.
It later emerged that officials in Milwaukee had imposed a gag order on health department employees. It barred them from having contacts with elected officials without prior approval.
Wisconsin’s third branch of government is critical to open government. This year, the Wisconsin Supreme Court will hear three cases involving Wisconsin’s open records law, and could make important decisions involving access to the courts. The court’s docket starts with a case about whether videos of law enforcement training sessions must be released to the public. The videos were requested from then-Waukesha District Attorney Brad Schimel by the Democratic Party of Wisconsin during the race for attorney general, which Schimel later won. Lower courts rejected Department of Justice arguments that disclosing the videos would educate criminals about law enforcement practices and harm crime victims, because the information was already in the public sphere and did not identify victims.
The appeals court ruled that the DOJ “neither made the exceptional case required to shield public records from public view … nor overcame the presumption of complete public access to public records.” But the justices have agreed to take another look.
The last six months have been a roller coaster for Wisconsin’s open records law. After the Legislature’s failed attack on the law over the Independence Day holiday, August brought a new threat. A little-known state board expanded the definition of “transitory records,” which can be immediately destroyed. Once this action was revealed, there was an impressive outcry from the public and that change was dialed back last month. But there is still cause for concern.
Following the Aug. 9 police shooting of Michael Brown, an unarmed teenager in Ferguson, Missouri, citizens and the public demanded to know the involved officer’s name. The Ferguson Police Department stirred national attention, and some outrage, by waiting six days to reveal it: Officer Darren Wilson. Wisconsin has Ferguson beat. On April 30, 2014, a Milwaukee police officer shot Dontre Hamilton 14 times, killing him.
Wisconsin’s status as an open government hot spot is reflected in the National Freedom of Information Coalition’s decision to host its annual conference here this month. The 2012 FOI Summit, also held in collaboration with the Society of Professional Journalists, will be held at the Madison Concourse Hotel and Governor’s Club in downtown Madison on May 11 and 12.