One great thing about Wisconsin’s open records law is that it’s not supposed to matter who wants records or why. The law, enacted in 1983, asserts that no state or local government office may deny a request because the person making it “is unwilling to be identified or to state the purpose of the request.”
This is an important principle, because access to public information should not be limited to people whose motives have been deemed pure. In fact, citizens and political parties often use the law to scrutinize public officials and political opponents. That’s how it should be. A few years back, the primary author of Wisconsin’s open records law, former state Sen. Lynn Adelman, now a federal judge, told a group of open government advocates that he was prepared to kill the entire bill rather than accept an amendment that would have removed this ability to make anonymous requests.
When the University of Wisconsin-Madison and UW-Milwaukee released records about sexual misconduct complaints to news organizations last month, they heavily redacted the documents and refused to identify numerous employees who were found to have committed wrongdoing.
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.
In my career as a journalist, I have encountered many public officials who respect government openness and transparency. There was the state records custodian who turned over dozens of her boss’s embarrassing emails after telling him that keeping them secret would violate the law. And the university staffers who pointed me to public information the school tried to keep out of the public eye. And the local elected official who told me what happened in a closed session she thought may have been illegally closed. As we approach this year’s annual celebration of Sunshine Week, March 11-17, it’s worth recalling times when people entrusted with our tax dollars have stood up for our right to know.
Computers have made examining government records easier than ever. The smallest townships across Wisconsin post the meeting agendas and minutes online. And websites for government agencies at all levels contain an enormous amount of other information. Electronic records are also available on request. Say you want to see a skate-park-feasibility study you’ve heard about.
A week after Republicans in the state Legislature voted to gut the public records law in 2015, members of the Assembly sought to quell backlash over the plan. A resolution that passed 96-1 affirms that the Assembly “remains committed to our state’s open record and open government laws and policies, and will take all necessary steps to ensure that these laws and policies are preserved without modification or degradation.”
Fast-forward two-and-a-half years: Has the Assembly kept its promise? Here are some recent events to consider. In November, Assembly Chief Clerk Patrick Fuller and Senate Chief Clerk Jeffrey Renk denied public records requests from multiple news organizations for records of personnel and sexual harassment investigations. Among other reasons for withholding the documents, the clerks claimed disclosure would have a chilling effect on employees’ use of the Legislature’s internal complaint process.
State law makes nearly all governmental records open to inspection and copying, and requires custodians to release records “as soon as possible and without delay.”
So how are they doing? Recently, the Wisconsin Institute for Law & Liberty conducted an experiment to see how well school districts are complying with the state’s Open Records Law. We asked the state’s 20 largest school districts for records from the last two years relating to their compliance procedures and how quickly they fulfilled requests. The results were tabulated in a recent report. Here are some highlights:
The good: Of the 12 school districts that fulfilled our request without charging a fee, six of them (Appleton, Green Bay, Janesville, Racine, Waukesha and West Allis-West Milwaukee) reported response times, on average, of 10 business days or fewer.
After 35 years of reporting on government, I’m not sure how much I’ve learned, but I do have some observations. First, most politicians, government officials and staff want to do a good job and faithfully represent their constituents’ interests at city hall, the state Capitol, and in Congress. Second, most probably prefer to not have the public looking over their shoulders. Some honestly (and mistakenly) think their work isn’t the public’s business. Some just don’t want to be bothered.
In an age where major public policies are announced and debated through platforms like Facebook and Twitter, the courts are increasingly barring public officials from limiting people’s access to social media. In late July, a Virginia judge ruled that public officials do not have the right to block people who disagree with their views from an official Facebook page. A legal challenge also has been brought by people blocked from the president’s @realDonaldTrump Twitter feed. And in August, the American Civil Liberties Union of Maine sued on behalf two residents who claim the governor violated their First Amendment rights by blocking them from posting on his “Paul LePage, Maine’s Governor” Facebook page. In the Virginia case, resident Brian Davison sued Loudoun County Board Chairwoman Phyllis Randall for blocking access to her Facebook page after he posted allegations that school board members and their families had possible conflicts of interest.
As befits a year in which anything, it seems, can happen, the Wisconsin Supreme Court’s public records docket this term was marked by atypical cases. In Voces de la Frontera v. Clarke, the Milwaukee County Sheriff’s Department redacted information from immigration detainer forms provided in response to public records requests, asserting that a federal immigration regulation required the redactions. A Milwaukee County judge and the Wisconsin Court of Appeals concluded that federal law did not require the redactions, but the Supreme Court disagreed. Open government advocates were disappointed that the Supreme Court’s opinion focused almost exclusively on this interpretation of federal law, not the presumptions of openness enshrined in Wisconsin statutes. In Teague v. Schimel, the court looked at whether the Wisconsin Department of Justice violated individuals’ rights by releasing background check materials that sometimes reflected the criminal records of other individuals with the same names and birthdates or that had been used as aliases.
Not long ago, I asked Wisconsin Assembly Speaker Robin Vos (R-Rochester) for records regarding a controversial bill he helped author on free-speech rights at state universities. I had already obtained some communications between Vos aide Alicia Schweitzer and the Legislative Reference Bureau, from the bill-drafting file. They showed that his office had added bill language calling on UW-System schools to punish “indecent, profane, boisterous (or) obscene” conduct that interfered with others’ free speech. The LRB bill drafter, Mark Kunkel, deleted these terms, saying they were overly broad and ambiguous. But Schweitzer insisted that they be restored.