Last month the Wisconsin Freedom of Information Council did something unexpected. Members voted to award one of its Openness Awards — or Opees — to Gov. Scott Walker.
That’s the same guy who has fought the disclosure of political donors, whose administration directed cabinet secretaries to avoid creating publicly accessible records while conducting official business and two years ago tried to gut the state’s open records law.
But in 2016, Walker issued directives ordering state agencies to step up their responses to public records requests. As a result, said FOIC president Bill Lueders, state agencies have responded to records requests more promptly.
“I’d also say that it’s something that Walker didn’t need to do,” Lueders said. “And yet he did it and it made a positive difference.”
A public record can be any document that relates to the business of government. Emails, expense reports, invoices, instructions for drafting bills, memos, even text messages all qualify. Reporters are often on the front lines of requesting government records when investigating stories, but anyone can file a public records request.
According to a Wisconsin State Journal analysis last year, the average records request response times for most government agencies decreased by 30 percent in the year following Walker’s first directive, issued in March 2016. A year later a second executive order required agencies to post response times for open records requests, limited fees they could charge for assembling records and mandated training for employees and officials.
But despite Walker’s directives, state agencies, as well as local governments, law enforcement agencies and school districts, often continue to practice evasive maneuvers.
“Walker had a political problem because of what happened with the open records debacle a couple of years ago,” said Scot Ross, executive director of the liberal advocacy group One Wisconsin Now. “So he did what a politician does: He tried to solve a political problem with a political solution, not with a policy solution that’s really going to make a difference.”
The “debacle” Ross referred to occurred months before Walker’s first directive, when the Legislature inserted language into the state budget that would have put “deliberative process” records off limits. Those records include opinions, analyses, briefings, background information, recommendations and drafting notes for policy proposals — the release of which, Republican leaders argued, could have a chilling effect on the legislative process.
Critics said shielding them from public view would have made it impossible to see who is influencing policy.
The move followed Walker’s unsuccessful attempt to use the deliberative process argument to cloak his involvement in trying to expunge the Wisconsin Idea from the University of Wisconsin’s mission statement. Both moves sparked backlashes and were abandoned.
“I don’t believe that we’ve had an elected official in my 10 years at One Wisconsin Now that you could consider more hostile to open records than Scott Walker,” Ross said.
Problems with the balancing test
When it comes to seeking public records, Ross’ group is a regular. And it’s no secret that One Wisconsin Now has a political ax to grind with the Walker administration. But Ross stresses that the requests the group makes are respectful, well-crafted and, to the extent possible, narrow in scope.
“We’ve been doing this a long time, and I was a reporter before this,” he said. “So I know how to do an open records request.”
He said what he sometimes gets in return are “delays, denials and the runaround.”
He’s not alone. There are others who maintain that government agencies zealously guard information that could put them in a bad light, be used by political adversaries or simply be a nuisance to compile.
Some say part of the problem lies in the state’s open records law, which gives records custodians — elected or other government officials or their designees — wiggle room when determining which records to release and how promptly to release them.
“From my experience, there are a couple of flaws in the Wisconsin system,” said Mark Pitsch, assistant city editor at the Wisconsin State Journal and president of the local Society of Professional Journalists chapter. Pitsch is also a member of the Freedom of Information Council.
Pitsch said the law allows records custodians to apply a “balancing test” in determining whether the harm of releasing public records outweighs the public good.
“I think it has been used by government agencies to deny records requesters the documents that should be made available under the law,” he said. “It’s essentially a shield or a cover.”
The law states that records need to be released “as soon as practicable and without delay.”
“There’s some debate about whether the ‘as soon as practicable and without delay’ language is useful or not,” Pitsch said. “I’ve worked in other states where custodians are supposed to respond within a handful of days, and my experience is that has been an effective way to put the burden on the state or local government agencies to respond in a timely manner.”
He said he’s seen weeks go by before agencies even acknowledge they’ve received a request.
Obtaining public records in a timely manner can be a frustrating exercise for reporters and advocates working on deadlines, pursuing breaking stories or engaging in policy matters.
Increase in requests at UW
One frequent target for criticism is the University of Wisconsin-Madison, which has a single staffer handling hundreds of requests each year.
“In recent years, the volume of requests has increased significantly while the complexity of many requests has also increased,” said John Lucas, UW-Madison assistant vice chancellor of communications, in an email.
He said requests to the university’s records custodian have increased from 210 during the 2013-14 academic year to 342 between July 2, 2017, and March 21 of this year.
“UW’s large employee base and its decentralized administrative structure turn many requests into small research projects,” he said. “Requests require time in order to locate information” to fulfill requests appropriately.
Lisa Hull, the UW-Madison records custodian, said part of the increase in requests is likely due to the centralization of the records process over the past three years to her office. She now receives requests previously handled by other campus entities to make sure “they were being fulfilled according to the law, and with the advice of counsel where necessary.”
Lucas said the university has dealt with the challenge by launching a public records portal to receive requests, provide updates and answer questions. The university also plans to hire additional staff, he said.
But problems remain.
Former State Journal reporter Nico Savidge said he ran into a brick wall last year when he was investigating tips about sexual harassment at UW-Madison’s Urban Planning Department.
He filed a request last summer, then didn’t hear anything for “two or three months.” Efforts to get the status of his request were met with timelines that repeatedly projected the release further into the future.
Pressure mounted last fall when Savidge announced that he was leaving his job at the State Journal.
“In a fascinating coincidence, it now appeared the records wouldn't be ready to be released until after my last day at the State Journal,” Savidge said in an email relating his account of the process.
By that point, he’d already collected “more than enough information” to report sexual harassment allegations in the department. He told Hull he would include in the story that UW-Madison was refusing to hand them over.
“Lo and behold, UW provided the documents not long after that message, and I incorporated them into my story,” he said.
Cap Times reporter Pat Schneider had a similar experience.
On Oct. 26, Schneider filed a request with UW-Madison for emails sent or received by then-Wisconsin Business School Dean Ann Massey regarding the school’s full-time MBA program, which Massey had proposed to suspend. The move generated an angry backlash from students, alumni and donors, and Massey subsequently resigned.
Schneider got a message from Hull acknowledging receipt of the request, then she waited nearly two months before requesting an update.
Hull explained that Schneider’s request was about 40th in line when she made it.
“The IT department has done the search for the emails you requested,” she said, “and they are in the process of being formatted and organized for review. I am estimating I will have your records ready by mid-January.”
Schneider received records on Feb. 16 — over three months after her request — showing that some donors were actively opposed to the MBA changes.
Avoiding bad press
On occasion, the foot-dragging in the release of public records involves documents that reveal embarrassing or unflattering information, such as Walker’s involvement in the move to eliminate the Wisconsin Idea from the UW’s mission statement.
After the Center for Media and Democracy sued, a judge eventually ordered the administration to turn over the documents, which included emails and attachments that showed that Walker had proposed the changes.
One Wisconsin Now met with months of delays in the group’s effort to obtain records of tens of thousands of dollars worth of promotional items purchased by the Department of Justice.
The group filed a request on May 30 of last year that was denied on June 23. Ross narrowed his request on June 29, then waited until Sept. 1 for a list that showed the department spent more than $50,000 on promotional items like backpacks, candy and keepsake trading coins, including $10,000 for gold-plated coins that read, “K.A.E.D.,” a slogan favored by Attorney General Brad Schimel that stands for Kick Ass Every Day.
In another recent example, Ross said it took nearly six months for Walker’s office to fulfill a request for his vehicle travel logs.
The Department of Natural Resources has also come under criticism. Environmental advocacy groups say there are some improvements since the governor’s directive. But the agency has a tendency to charge prohibitive fees for fulfillment.
“I still view the costs for the time and processing of requests as something that, for a general member of the public, is untenable,” said Tressie Kamp, staff attorney for Midwest Environmental Advocates.
In 2016 the DNR settled with Midwest Environmental Advocates after the group sued over unreasonable delays in providing records. Kamp said the settlement led to the establishment of a new DNR records policy that has had some positive effects.
But Cheryl Nenn with Milwaukee Riverkeeper said she has seen some aspects of records availability deteriorate in recent months. Nenn regularly requests DNR permit information for large factory farms that discharge into the three rivers she monitors.
She used to be able to obtain information like nutrient management plans through informal emails. Now she has to go through a formal process, which can take weeks.
“They’re making it very hard for us to get a lot of the information we used to get in the past,” she said.
And that, she said, is a problem because the time provided for public comment or objection to a permit is only 30 days.
“By the time I get it I’m not going to have a lot of time to review all the information,” she said. “And it tends to be a lot of information.”
She said her group periodically requests lists of farms that have violated their discharge permits in order to identify problem farms. That list used to include information about the types and numbers of violations, which is often all the information she needs.
“Now the list includes just the facility names,” she said, which means she has to go through the laborious process of requesting information on each farm.
“That’s not a really good use of my time, and it’s not really a good use of their time,” she said. “Because they’re going to have to put way more information together to send back to me than I probably would have originally requested if I’d just got more information from the get-go. And they’re probably going to charge a lot for it.”
In some cases, groups and media organizations have to go to court to get the information they’re seeking.
According to a soon-to-be-published study by UW-Milwaukee journalism professor David Pritchard, over the past 40 years UW schools have lost all 34 open records lawsuits filed against them, starting with Pritchard’s own 1978 lawsuit against UW-Madison while he was a reporter at the Cap Times.
That lawsuit, seeking documents relating to professors’ work as consultants or researchers for outside interests, led the UW Board of Regents to adopt a systemwide code of ethics that requires every faculty member to file a statement of outside activities.
“Every time a news organization goes to court to get access to a public record, they always win,” he said.
Pritchard said in two previous studies he also found a partisan component with public records availability.
One study found a strong correlation between a liberal political culture and effective access-to-information laws. The other found that journalists’ privilege to keep sources confidential is much stronger in states that have progressive political cultures.
“So those two findings together suggest pretty strongly that it’s progressive political cultures that favor a free flow of information, and conservative political cultures tend to have stricter control over the flow of information,” he said.
While the presumption of openness in government often prevails in court, the state Supreme Court’s conservative majority has overturned lower courts to rule against the release of records in two recent cases.
Both put open records advocates on alert because they allow records custodians to consider perceived motives when deciding whether to release information. Precedent stipulates that the identity and motive of the requester is legally irrelevant.
One case involved Madison Teachers Inc.’s request for lists of teachers who did not vote in the union’s annual recertification election. The Supreme Court’s conservative majority denied MTI’s access to the records, noting that the information could be used to harass or intimidate voters.
The other involved the state Democratic Party’s request for training videos produced by Attorney General Schimel while he was serving as Waukesha District Attorney.
While Justice Rebecca Bradley wrote for the conservative majority that the reason for denying the request was to prevent traumatizing victims and to keep law enforcement tactics out of the hands of criminals, she also noted that Democrats had a “partisan purpose” in requesting the videos.
Lueders, of the Freedom of Information Council, said such cases are significant because they provide “language for other people to cite in order to justify their denials.”
But it’s not just conservatives. Democrats withhold information, too.
In 2013, state Sen. Jon Erpenbach, D-Middleton, lost a case in which he tried to withhold names of constituents from emails requested by the conservative Wisconsin Institute for Law and Liberty.
Late last year, a bipartisan group of legislative leaders refused to hand over records related to claims of sexual harassment. While media organizations fired off indignant editorials, no one has yet taken the case to court.
Lueders said he thought the case was “ripe for legal action” because “there have been other cases where government has been forced to give up information about disciplinary investigations involving public employees.”
“Enough time has passed since this has happened that I’m starting to doubt that anyone’s going to do it,” he said.
Recently two state lawmakers, one Democrat and one Republican, landed in court for refusing to provide electronic copies of requested records, instead charging steep fees for paper records that have less utility because they aren’t searchable.
Lueders is suing Rep. Scott Krug, R-Nekoosa, for electronic copies of records about state water policies. Krug had offered up 1,500 pages of paper for a per-page fee. And WILL is suing Rep. Jonathan Brostoff, D-Milwaukee, for emails pertaining to occupational licensing. Brostoff charged the group more than $3,000 for paper copies.
Both of those cases are pending.
WILL joins the fight
WILL has become a player in open records issues, taking on numerous school districts, law enforcement agencies, lawmakers and the state Department of Justice in court.
Most recently, the group reached a settlement on behalf of Isthmus, the Madison alternative weekly, against the Madison Police Department, which took more than a year to produce records relating to former officer Stephen Heimsness, who was involved in a controversial fatal shooting.
WILL also last year produced a report, “Let There Be Light,” rating several large school districts on responsiveness to open records requests. The report called the Madison Metropolitan School District’s practices “deeply disturbing,” noting that the district doesn’t even have a tracking system for open records requests and charged the group more than $1,000 to produce records pertaining to how quickly the district responds to records requests.
There are currently several open records cases involving law enforcement and state and local government winding their way through the courts.
Some open records advocates have been heartened by Walker’s directives, but they recognize that maintaining government transparency is an ongoing effort.
“Sometimes it feels like two steps forward and one step back,” said Madison attorney Christa Westerberg, a member of the Freedom of Information Council. She has litigated several open records cases, including a case against the Department of Justice for crime investigation information that has dragged on for more than a year.
“Certainly there needs to be constant vigilance,” she said. “One of the nicer developments is government agencies are pushing more information out and posting things online and making things available.”
But she added: “It still seems like quite a struggle, more of a struggle than it should be.”
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