Tag Archives: open records

Conservative court says DOJ doesn’t have to release Schimel videos

The Wisconsin Supreme Court this week rejected Democrats’ efforts to force the release of training videos featuring Republican Brad Schimel before he became attorney general, finding that he didn’t say anything inappropriate in them, as Democrats initially alleged, and that releasing them could hurt prosecutors and crime victims.

The recordings don’t reveal any misconduct and releasing them would reveal prosecutor strategies as well as re-traumatize victims in a high-profile sexual extortion case, the court’s conservative majority ruled in a 5-2 decision.

The state Democratic Party asked the state Department of Justice in 2014 to release videos of presentations on sexual predators that Schimel gave in 2009 and 2013, when he was the Waukesha County district attorney.

The 2009 video shows Schimel discussing prosecution strategies.

In the 2013 video, Schimel recounts a case in which a Waukesha County high school student posed as a woman online, obtained graphic pictures from male classmates and blackmailed them into sexual acts.

The Democrats’ demanded the videos during the height of Schimel’s attorney general campaign, alleging they showed him making ethnic and racial slurs, as well as sexist comments.

The DOJ refused to hand over the videos, arguing that they reveal prosecutorial strategies and could re-traumatize the blackmail victims.

That stance prompted Democrats to sue.

A Madison judge who viewed the videos found that Schimel didn’t make any inappropriate remarks and that no victims were identified by name.

Both the judge and a state appeals court ruled the videos should be released.

The DOJ allowed the Democrats’ attorney to view the videos, after which he dropped the misconduct claims, according to court documents.

The state Supreme Court sided with DOJ, ruling the videos don’t show any official misconduct and the lawsuit suggests a partisan purpose behind the request.

Writing for the majority, Justice Rebecca Bradley likened the 2009 video to prosecutors’ case files, which are exempt from Wisconsin’s open records law.

The video clearly contains discussions of tactics and could be widely disseminated online, helping criminals avoid detection, the court found.

Bradley acknowledged that Schimel doesn’t name any victims in the 2013 video, but she wrote that someone could figure out who they are from the context. That could re-traumatize them in violation of a state constitutional amendment that requires the state to treat crime victims with dignity, she wrote.

“The denial of public access occurs only in exceptional cases. This case presents one of those exceptional situations,” Bradley wrote. “The two videos requested here do not contain any evidence of official misconduct. Our review independently demonstrates that the reasons proffered (for withholding the videos) are sufficient and supported by the facts in this case.”

The court’s two liberal-leaning justices, Shirley Abrahamson and Ann Walsh Bradley, dissented.

Abrahamson wrote that the court should have ordered the videos released with sensitive information redacted.

She chastised the majority for suggesting that the request was politically motivated, noting that the open records law doesn’t require requestors to explain their motivation. She added the ruling offers no limits on when protecting victims trumps disclosure.

“What has the majority achieved with its opinion grounded in speculative, abstract, and unsubstantiated fears? The answer for me is: A dimming of the light on public oversight of government, especially in matters pertaining to criminal justice.”

A Democratic Party spokesman didn’t immediately respond to an email seeking comment.

Open records in Wisconsin

The last day of the Joint Committee on Finance state budget work in the summer of 2015 was expected to be a day with some surprises. One surprise no one could have anticipated was the inclusion of page after page of open records changes.

Jon Erpenbach
State Sen. Jon Erpenbach. — PHOTO: Courtesy

Limiting not only nearly every legislative office record, the changes also would have closed state public agency records and the governor’s records as well. Maybe that is why we celebrate “Sunshine Week” every year, to remind us all of the value of open government and the importance of transparency.

To close records was monumental, epic and dangerous.

As JFC Democrats, we were given only 15 minutes to talk about the Republican motion that gutted open records. I spent every single second of my time talking about the mistake of the open records change. I remember saying that in the future when these Legislators left office and were looking back, this vote, to gut the open records law, would be their biggest regret because of the damage it would cause the people of Wisconsin.

Not one Republican vote was swayed by that argument and every single Republican on the Committee voted in favor of gutting Wisconsin open records law, including Representative Czaja and Senator Harsdorf. So of course it was a little disappointing that the Wisconsin Newspaper Association honored these two legislators with awards.

Open records legacy

Wisconsin had some of the first open records laws in the country. Decisions making sure records of the government were open for inspection in Wisconsin are almost as old as the state itself. As we are about to embark on Sunshine Week 2016 to celebrate open government, I hope we will all reflect on the 2015 budget open records crisis and remember how quickly the rules can change if we take them for granted.

I have always been a defender of a strong Wisconsin Open Records law, even when I was sued because I would not give out personally indefinable information of constituents who had contacted my office. The ability to make a decision as a custodian of public records and the counter balance of being able to bring suit when you disagree is central to the Wisconsin records law and I hope it will be for years to come.

Let’s celebrate Sunshine Week 2016 with extra vigilance given the summer of 2015 action.

For more information on Wisconsin’s Open Records law contact the representative’s office at 608-266-6670 or .

Open records law showcased in “Sunshine Week” tour

Monday begins Sunshine Week, which emphasizes the critical importance of the state’s open records law.

The law, which is in peril in Wisconsin, gives the media and the public access to public records. Democracy depends on government transparency, because without it taxpayers and voters can’t know how elected officials are conducting the people’s business.

Advocates of open government in Wisconsin are planning an eight-city tour to highlight the importance of the state’s open records law in the wake of unprecedented attacks from state lawmakers. Last summer, Gov. Scott Walker and the state’s Republican leadership tried to sneak a measure into the budget that would have blocked public access to everything created by state and local government officials, including drafts of legislation and communications with staff.

The Sunshine Week tour will include representatives of the Center for Media and Democracy, the Wisconsin Freedom of Information Council, the Madison chapter of the Society of Professional Journalists, the Wisconsin Institute for Law & Liberty, the MacIver Institute for Public Policy, and the Wisconsin Democracy Campaign.

The traveling show will take place in the following locations:

La Crosse: March 15, 2 p.m. La Crosse Public Library. Local sponsor: La Crosse Tribune.

Eau Claire: March 15, 7 p.m. Centennial Hall, Room 1614, UW-Eau Claire. Local sponsor: Eau Claire Leader-Telegram, UW-Eau Claire chapter, Society of Professional Journalists

Wausau: March 16, 10 a.m. Marathon County Public Library. Local sponsor: Wausau Daily Herald-USA TODAY NETWORK-Wisconsin

Green Bay: March 16, 2 p.m. Green Bay Public Library. Local Sponsor: Green Bay Press-Gazette-USA TODAY NETWORK-WISCONSIN

Appleton: March 16, 7:30 p.m. Appleton Public Library. Local sponsor: Appleton Post-Crescent-USA TODAY NETWORK-Wisconsin

Sheboygan: March 17, 10 a.m. Sheboygan Public Library. Local sponsor: Sheboygan Press-USA TODAY NETWORK-Wisconsin

Waukesha: March 17, 2 p.m, Waukesha Public Library. Local sponsor: Schott, Bublitz and Engel S.C.

Janesville: March 17, 7 p.m. Blackhawk Technical College. Local sponsor: Janesville Gazette

Wink, wink: Walker celebrates ‘open and transparent’ government

Was that “tout” or “flout” the idea of an open, transparent government? Wisconsin Gov. Scott Walker on March 11 issued Executive Order #189 to “promote open and transparent government.”

The order was issued as a part of Sunshine Week, which takes place next week and was founded to celebrate and promote open records, access to meetings and adequate notice of hearings and forums.

The Walker administration has come under repeated fire for governing outside of the sunshine and last summer his office was involved in an attempt to gut the state’s sunshine laws.

Yet in a news release announcing the executive order, Walker claimed, “We go above and beyond what is required by the law when it comes to public records requests to make sure we are being as open and transparent as possible for our citizens. Today, we are thrilled to highlight some of the great initiatives we have put in place to ensure public access to government across all state agencies.  We continue to look for ways to better serve the people of Wisconsin.  By implementing these new initiatives, our citizens will have access to government services and processes far beyond what any previous administration has offered.”

The release said, “Walker’s office leads the way on transparent and open government.


In the sunshine: Open records and open government

Journalists come to their profession motivated to serve the public good, protect the public welfare and strengthen the Fourth Estate.

Chief among our concerns as reporters, editors and publishers is safeguarding open records and open government. We cannot have good government without an open government, without government that operates visibly, in the sunlight.

James Madison, the father of the U.S. Constitution, wrote “consent of the governed” requires that the people be able to “arm themselves with the power which knowledge gives.”

Each March, for Madison’s birthday, we celebrate Sunshine Week. Journalists and others who work in media, along with our press associations, watchdog organizations and civil liberties groups, trumpet the value of transparency and warn against the damage that society suffers without it, such as during the dark days of the notorious Nixon years.

Sunshine Week dates to Sunshine Sunday in 2002, which came in response to efforts to carve up one of the strongest public records laws in the country and create new records exemptions in Florida.

By 2005, the sunshine movement had gone national.

Keeping government in the sunshine is not a left or right issue or a partisan matter. For proof, look to the Open Government Traveling Show making its way around Wisconsin. To present 90-minute programs on the open records law, the Wisconsin Freedom of Information Council and the Madison chapter of the Society of Professional Journalists are joining with the liberal Wisconsin Democracy Campaign and the Center for Media and Democracy and the conservative MacIver Institute for Public Policy and the Wisconsin Institute for Law and Liberty.

Representatives of those groups, as well as Madison attorney April Barker, are traveling March 15–17 to La Crosse, Eau Claire, Wausau, Green Bay, Appleton, Sheboygan, Waukesha and Janesville to talk about the freedom of information and protecting public access to government records. The Wisconsin Center for Investigative Journalism also is involved.

In Wisconsin, we’re fighting to protect our laws from an administration that’s shown a blatant disregard for the public’s right to know.

We united last summer to defeat an overhaul of the state public records law, dodging a sneak attack on open government that Republicans launched as we celebrated the country’s independence.

Yet, we must remain vigilant because attacks on open government continue in Wisconsin.

Remember, every citizen in our participatory democracy has an inherent right to access government meetings and public records. Open and accessible government is vital to establishing and maintaining the people’s trust and confidence in lawmakers and other elected officials. Without such knowledge, the people are powerless.

For Sunshine Week, we encourage you to share a pledge with your elected officials and appointed clerks who keep government records:

  • Government meetings must be properly promoted and open to the public.
  • Government agencies or departments must accept, as a minimum, information requests by phone, mail, over the counter or online.
  • Information requests must be responded to promptly.
  • Government departments and agencies must keep a log of information requests.
  • Governments must post on-site and online records that are likely to be the subject of repeated requests, including contracts that exceed $5,000.

Sunshine Week is for all of us to celebrate. Catch some rays.

Aid for wrongfully convicted could make open records problem

A bill that would increase compensation for people wrongly convicted of crimes has open records advocates worried over what it would do to court records.

The bipartisan bill from Rep. Dale Kooyenga, R-Brookfield, and Rep. Gary Hebl, D-Sun Prairie, would help the wrongly convicted with up to $50,000 per year spent behind bars, plus transitional services and access to state health insurance.

Another provision requires a court to seal all records related to the conviction if it’s requested by the person freed. Open records advocates say that would make it hard to examine the case to figure out where it went wrong.

“Do we really want to hide from public view the court file in cases where an injustice was done by the justice system?” said Wisconsin Freedom of Information Council president Bill Lueders.

Lueders pointed to the recent “Making a Murderer” Netflix documentary series about Manitowoc County native Steven Avery, who served 18 years in prison for sexual assault before he was exonerated. A few years after his release, Avery was sentenced to life in prison for the 2005 death of photographer Teresa Halbach. Under the current bill, Lueders said, much of the information about how the sexual assault case was handled would not have been public, giving Avery sole discretion on what to divulge.

“Sealing it all up conceals not only the fact that it happened, but also the misconduct that occurred in the case,” said Madison media law attorney Robert Dreps.

Hebl said he’s a strong supporter of open records and transparency, but in the case of people who were wrongly convicted, the records can hurt their chances to remake their lives.

“The fact that they’ve gone through this horrible travesty of judgment and spent so much time in prison for something they didn’t do, I think it’s incumbent upon us to give them some reasonable rights,” Hebl said.

The state Assembly passed the bill unanimously Tuesday and the Senate could take it up this week.

Lueders is pushing for the Senate to remove or amend the language on records. Hebl said he hasn’t heard from any legislators interested in doing that.

Hebl noted defendants could share their records with the public or with media if they want, but Dreps said giving that right only to defendants raises First Amendment concerns.

“I don’t sacrifice my constitutional rights to a defendant’s whim,” Dreps said.

He instead suggested attaching a note to any court records or online records when a case is overturned. Lueders said for most of those, shielding information won’t help with the reputation of the person involved. Many are high-profile cases with extensive media coverage that would still live online.

“You’re not going to make it go away by hiding certain court records,” Lueders said.

Concerns linger over ‘transitory’ records in Wisconsin

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.

The state Public Records Board sets retention schedules for state and local government records. Retention is important—if records aren’t retained, they can’t be requested and obtained by the public. State law makes retention the rule, and records can be disposed of only if the Public Records Board grants permission. The board’s mandate is to “safeguard the legal, financial and historical interests of the state in public records.”         

But in 2010, the board made the questionable decision to allow immediate deletion of some correspondence. Such “transitory records” were deemed of such temporary value as to not require any retention. State agency employees could simply delete these records after they were created, without any further oversight.

On Aug. 24, 2015, the board held a meeting and expanded the transitory records category. Now it included not just correspondence, but other documents such as “interim files” and “recordings used for training purposes.”

The board’s meeting notice and minutes contained no indication of this change, later prompting the Wisconsin Freedom of Information Council to file an Open Meetings complaint with the district attorney. The day after the new definition was passed, the Walker administration notified the Wisconsin State Journal that records it previously requested had already been destroyed as “transitory.”

News outlets then reported the Public Record Board’s actions, and the reaction was swift. Critics said the change undermined the records law and the public’s right to know, inviting abuse. They pointed out that records the board defined as “transitory” were actually of significant public interest.  There were also concerns that whole categories of electronic communications would be deleted as “transitory.” The Public Records Board was flooded with nearly 1,900 emails.

Fortunately, the board listened. At a meeting in January, it rescinded its August decision to expand the definition of “transitory records.”

But the danger has not passed. The old, 2010 definition of “transitory records” is still in place. Records custodians can still immediately delete some correspondence. Comments from board members in January suggested they are resistant to eliminating this category, despite state law suggesting that no records can be instantly deleted. Board president Matt Blessing said the issue would be revisited at a future meeting.  The board next convenes on March 7.

Another positive step is a bill being circulated by Democratic lawmakers that would create penalties for destroying public records. As Assembly Minority Leader Peter Barca observed, “There’s no recourse if agencies destroy records.” The bill would shore up existing provisions in the law that deter premature destruction of public records.

Let’s hope one or both of these potential fixes advance. Otherwise, Wisconsin’s weak records retention requirements will continue to undermine the public’s right to know.

Christa Westerberg is an attorney at Bender Westerberg LLC in Madison, and co-vice president of the Wisconsin Freedom of Information Council.

Environmental group files open-records complaint against Wisconsin DNR

Midwest Environmental Advocates this week filed a complaint in Dane County Circuit Court against the Wisconsin Department of Natural Resources for allegedly violating state open records laws by delaying DNR responses to MEA open records requests.

The group based its complaint on three outstanding open records requests: one related to air, the second to a group of wetlands permits and the third regarding concentrated animal feeding operations, also known as CAFOs.

Wisconsin’s open records laws — MEA referred to Wis. Stat. § 19.31 et seq. — give the public the right to obtain records from government authorities, with limited exceptions. The laws make employees at state agencies such as the DNR custodians of the agencies’ records for public access. The law, MEA said in a news release, implies a relationship of trust between Wisconsinites and the DNR, and a responsibility to serve the public by providing documentation of our government’s activities. 

“We’ve experienced too many instances where records requests have been unreasonably delayed,” said Tressie Kamp of MEA. “Now we and many of our partners in communities across Wisconsin feel that the trust that is inherent in the open records laws is misplaced. Without this trust, the law does not function as intended and citizens lose access to a transparent, responsive government. It was time to ask the courts for help.”

Open records laws require agencies like the DNR to provide records within a reasonable amount of time or to promptly and clearly explain a decision not to release requested records.

MEA said the DNR has delayed for more than six months in providing records in response to certain requests at issue in the complaint.

“Midwest Environmental Advocates decided that legal action was necessary to resolve not only this case but to bring to light an emerging pattern of delayed open records response to interested citizens, non-profit groups, and the media,” said Kamp. “To be clear, it is illegal and inefficient for all parties involved to withhold records from the public when the law entitles the public to requested information.”

2015: The year Wisconsin lost itself

In 2015, Wisconsin completed a 180-degree turn away from the state’s lauded history as a model of good government. The year saw the fruition of a process set into motion in 2011, when conservative Republicans gerrymandered the state so they couldn’t lose. They stopped even pretending that we live in a democracy in which opposing viewpoints have the right to be heard. Instead they proved the axiom that absolute power corrupts absolutely.

Their changes to the fundamental character of Wisconsin have occurred so fast and furiously the media and progressive groups haven’t been able to keep up with them. Stories that would have grabbed headlines in prior years were buried in the avalanche of game-changing laws tumbling out of the Capitol.

For every legislative travesty that’s been publicized in time to stop it through public outcry — such as the measure to abolish the state’s open records law, which was slipped quietly into the budget on a Friday afternoon — there have been dozens of other reckless laws enacted. Wisconsin citizens are likely to discover many transgressive laws on the books in the coming year that no one except Scott Walker, the Legislature’s Republican leadership and a few of their corporate backers are even aware of.

There’s not enough room in this editorial to enumerate all of the new measures that go against the grain of Wisconsin’s history. But we can say with certainty that few of them have spurred our economy, which is what our current leaders vowed to do when they were voted into office.

Walker did not create anywhere near the 250,000 jobs he promised. The state has hovered near the bottom of job producers for most of his time in office. Wisconsin has the fastest shrinking middle class is the nation; median household income here has fallen at the nation’s highest rate since Walker took office.

Walker has doled out $279 million of taxpayer money in the form of tax credits — many more millions than are allowable under the law — to businesses that failed to create jobs, partly because they weren’t even required to do so in exchange for their corporate welfare. Some of that money has disappeared into thin air, leaving no trace of where it went. This is money that, along with Walker‘s tax cuts to the wealthy, was supposed to create jobs. Instead it left Wisconsin with a budget shortfall and without any way to restore Walker’s draconian cuts to education, the worst in the nation. It left the state with no way to repair its crumbling infrastructure or maintain its natural splendor. It left no money to accomplish the myriad of things required for the state to really grow its economy and maintain its quality of life.

In truth, Walker and the Republicans have paid scant attention to the economy. The majority of their efforts have gone toward appeasing corporate and right-wing special interests in order to keep themselves in power. And they’ve abused that power by getting rid of a panoply of laws passed to ferret out and prosecute political corruption. It’s impossible to believe politicians who prioritize eliminating government watchdog groups and related prosecutorial officers have their sights set on good deeds.

Instead of jobs, Walker and his GOP colleagues have focused on issues such as expanding gun ownership, fighting same-sex marriage and women’s reproductive freedom, eliminating environmental protections, telling people getting food stamps what they can buy, packing state government with inexperienced cronies, repealing laws involving fair wages, such as the equal pay law for women … the list feels endless and hopeless.

Scott Walker promised last year during his re-election campaign that he would not seek the presidency in 2016. But he was the first to throw his hat in the ring. He went on to neglect his responsibilities here and the lunacy of his public behavior and remarks made a laughingstock of Wisconsin.

He seemed to return to his lesser job angry and dejected — more determined than ever to reshape the state according to his impenetrable and conflicted ideals.

How well he’s succeeded.

The only hope for the future is that Democratic and Republican voters alike get out next year and vote for candidates they can trust to focus on the issues that are important to our collective future — and not to candidates who are intent only on furthering their personal interests and those of their patrons.

Scott Walker’s story about state’s inability to fire employees for fornicating at work was not true

To drum up support for getting rid of Wisconsin’s civil service system, Gov. Scott Walker in September told a story of two state railroad commission workers who weren’t fired for having sex on state time and property. He said the state’s civil service system prevented supervisors from dismissing them, thus demonstrating the need for changes to the system.

But the Milwaukee Journal Sentinel reported Thursday (http://bit.ly/1PErp6D ) that records show no attempt was made to fire the two workers or discipline them beyond letters of reprimand issued in November 2011. The newspaper obtained the evidence proving that Walker’s story was false through the open records law that Republicans hope to kill. The state’s GOP leadership already has banned John Doe investigations of politicians and gotten rid of the non-partisan Government Accountability Board, which probes ethics violations.

Depite the proof that the governor’s story was false, his spokeswoman said Friday that the current system forced the state’s Office of State Employment Relations to recommend discipline short of firing.

But state law says specifically that employees can be fired for just cause. OSER officials didn’t immediately respond to an email inquiring about the case.

The state’s civil service system was created more than a century ago to eliminate rampant cronyism and corruption in the hiring of state employees. The Assembly has passed a bill to get rid of restrictions that prevent public officials from giving jobs to their family members, cronies and donors.