While some tweaks may be needed, the state’s 34-year-old open records law is flexible enough to adapt to modern technology and doesn’t need a wholesale makeover, media and open government advocates said Wednesday at a forum convened by Attorney General Brad Schimel.
“I disagree with the presumption that the state open records law needs to be rewritten or needs to be overhauled,” said WisPolitics.com president Jeff Mayers, adding that the law has proven to be “very flexible.”
Mayers’ comments were made before about 200 attendees of a summit Schimel organized to find ways to update the state’s open government laws to reflect new technology government officials use.
The meeting was held just weeks after leading lawmakers drafted provisions for the state budget that would have kept private virtually all records and communications made by state and local lawmakers and officials, as well as drafting files for legislation. After a broad public outcry, lawmakers scrapped the idea but said a Legislative Council committee would study the matter outside of the budget process.
Attorney Bob Dreps, who represents newspapers and other media outlets, said he supports convening a committee to see if certain areas of the records law need to be updated, with one caveat:
“I would not present the results of that committee to this Legislature,” he said. “I would rather see them face the voters first in 2016 and explain to them if they still want to see these privileges and exceptions and whether they think it’s good public policy. As currently structured, I do not trust this Legislature to do the right thing.”
Schimel set the tone of the daylong summit, by addressing the “elephant in the room.”
“Messing with open government laws is like touching the third rail,” Schimel said.
Even so, he said, Wisconsin’s open records laws were written in the 1970s and adopted in 1981, “long before anyone envisioned email or tweeting.” Wednesday’s forum, which was planned well before the Legislature’s budget committee adopted the controversial changes last month, was intended to start the process of reviewing the law, he said.
“We shouldn’t be searching for what we can redact or what we can refuse to disclose, but rather what we must refuse to disclose,” he said.
In interviews between panel discussions, however, Schimel indicated he would support an exemption for communication between public officials “to exchange ideas before that becomes the final public document.”
Schimel’s comments were made in response to a question about whether he supports providing a new exemption in the records law for “deliberative materials,” which was included in the original proposal to the state budget that was later removed.
Schimel came out against the measures at the time.
The summit also addressed applying the state’s open records law to police techniques that use footage of police body cameras. Schimel said he supports providing guidance to law enforcement officers on the matter.
The issue came into high relief Wednesday when a white University of Cincinnati police officer was indicted for the murder of an unarmed black man during a traffic stop. Along with the indictment, footage of the officer’s body camera was released to the public, showing the death and helping to provide the basis for an indictment.
At the meeting, attorney Samuel Hall, who represents law enforcement agencies, showed body camera footage of police officers shooting and killing armed citizens as well as a video of an officer being shot by a man who got into a scuffle with officers during a traffic stop.
Hall said it’s unclear what should be blurred or redacted from videos, and whether videos of incidents inside homes should be made public.
Jill Karofsky, who works with crime victims for the Department of Justice, also said laws should be updated to provide protections of privacy for crime victims. She said if a crime victim is afraid to file a report for fear of personal information being released, communities will be less safe.
Schimel said the law does not address how long camera footage should be kept on file, what has to be recorded and what doesn’t, or whether a bystander in the video has a right to object to his or her private information becoming public information in a video release.
“I think we have a long way to go before we determine where the lines are between what is necessary monitoring of government activity and (what is) necessary protection of privacy rights of citizens,” he said.
However, panelist James Friedman said the current records law is flexible enough to address these issues under the law’s balancing test, which allows records custodians to withhold records in cases where privacy concerns outweigh the public interest in disclosure.
While attorneys representing media and government watchdog organizations agreed Wednesday that the current laws don’t need to be heavily updated, those on the other side of open records requests said there are other situations that arise frequently that could be addressed.
Roger Allen, assistant city attorney for Madison who handles open records requests, said he would like to see the law mandating retention of electronic public records to be limited to three years in order to confine the scope of searches.
He also urged lawmakers to write a distinction into the law between people requesting records as part of a professional media organization and others who might be less responsible with the information they uncover. Currently, the records law does not require requesters, in most cases, to identify themselves and does not treat media differently from other citizens.
Rick Esenberg, attorney and president of the Wisconsin Institute of Law and Liberty, said he supported including a response time requirement for open records requests because trying to get some government agencies to respond to requests is “a bit like passing the event horizon into a black hole.”
Current law requires agencies to respond as soon as practicable and without delay.