Tag Archives: right to know

Your Right to Know: Release John Doe II case records now

One of the most important court decisions in Wisconsin political history was argued largely in secret. The arguments were made in briefs that were heavily redacted or entirely shielded from public view. The evidence was hidden. Most of the litigants were anonymous.

The level of secrecy “is something I haven’t ever heard of happening in Wisconsin,” says David Schultz, a retired University of Wisconsin law professor who has watched the state Supreme Court for 40 years.

Unless the high court decides to unseal its files, the public will remain ignorant of the full facts and arguments it considered when it shut down the John Doe II investigation centered on Gov. Scott Walker’s campaign — known in court documents as “Unnamed Movant No. 1.”

Leaked and inadvertently unsealed records revealed that Walker raised large, undisclosed donations for ostensibly independent political groups, which in turn ran “issue ads” prior to the 2011 and 2012 Senate recall elections and the 2012 gubernatorial recall. These are unregulated, thinly veiled communications often intended to influence elections without expressly advocating for or against any candidate.

When two lawsuits aimed at killing the probe and a third filed by prosecutor Francis Schmitz attempting to save it made their way to the Supreme Court, the majority of justices agreed that most of the issues should be argued in secret to prevent “testimony which may be mistaken or untrue from becoming public.”

In July 2015, by a 4-2 vote, the court ended the probe, declaring that the conduct under investigation was not illegal and ordering that the evidence be returned to the subjects or destroyed. The court later amended its order to direct that the remaining evidence be turned over to the court. No one was ever charged.

But questions remain: What exactly did Walker do behind the scenes to fight the recalls? What evidence did prosecutors offer that two of the justices had conflicts of interest? Did prosecutors abuse their discretion in investigating activity that the subjects argued was protected political speech under the First Amendment?

And, importantly, did the court follow the law and precedent when it decided to shut down the investigation? Or did it, as Justice Shirley Abrahamson charged in her dissent, engage in a “blatant attempt to reach its desired result by whatever means necessary”?

In October, two nonprofit and nonpartisan groups — the Wisconsin Freedom of Information Council and the Wisconsin Center for Investigative Journalism — filed a public records request with Diane Fremgen, the clerk of the Supreme Court, asking that the case file be opened.

Fremgen denied the request, saying the court had directed her to maintain “certain filings” in the case under seal — even essential records such as motions and briefs filed with the court.

There are, we understand, concerns about releasing some exhibits attached to the court filings, on grounds that this evidence was illegally seized by prosecutors and should remain sealed. But Fremgen decided not to split those hairs, denying the entire request.

Abrahamson, for her part, has argued the case should be open, writing, “The public has a constitutional, statutory and common law right of access to judicial proceedings and judicial records.”

We agree.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. Dee J. Hall is the group’s secretary and managing editor of the Wisconsin Center for Investigative Journalism.

 

Citizens Acting for Rail Safety warns of oil train dangers

A news conference took place in Milwaukee on July 6 to call attention to the dangers of trains hauling crude oil through communities. The event was held as part of a national campaign. Local speakers included: Fred Royal of NAACP Milwaukee, George Martin of 350.org Milwaukee, Beth Sahagian-Allsopp of Vanguard Sculpture  (a local business owner whose building is less than 100 feet from parked oil tank cars) and Eric Hansen of Citizens Acting for Rail Safety – Milwaukee Area. The following is a statement from CARS.

Citizens Acting for Rail Safety – Milwaukee Area is the local chapter of a regional grassroots citizens campaign organized in response to the surge of dangerous and unnecessary crude oil train traffic through our communities.

We are also part of a broader network – Crude Awakening – that stretches from coast to coast in both the United States and Canada. That movement grew in response to the Quebec disaster 3 years ago — and the industry stonewalling and inept federal regulation since then. Worth noting: the oil train that exploded in Lac Megantic, Quebec, killing 47 people, came through Milwaukee on its way to Quebec.

At the heart of this issue of parked crude oil trains is a citizen’s right to know — and object to — ill- advised industrial schemes that threaten our communities. To say safely or not at all.

A right to know what is coming down the railroad tracks and into our city and our neighborhoods.

A right to know that track defects, bridge repairs and other vital maintenance issues will be addressed promptly.

A right to know why hundreds of tank cars — with 1267 placards indicating they are holding highly explosive crude oil — are being stored in this location.

The 1267 placard is on these tank cars for a good reason. These are not “empty” tank cars — they still contain residue amounts of crude oil — or the 1267 placard would not be there.

Citizens have a right to know who owns these oil tank cars. Who chose to concentrate these crude oil tank cars in this location?

Has the railroad shared its worst case scenarios with local emergency responders?

What is the specific emergency response plan for an oil train fire in this location? How much catastrophic risk insurance does the railroad carry?

The citizens of this neighborhood: parents, neighbors and business owners — and the thousands of citizens who drive under this bridge every week — have a right to know what is going on here.

The railroad should be candid about the very real risks present here.

Connect the dots between what we are seeing here, industry stalling on basic oil train safety measures, continued inept regulation by federal authorities, and a reasonable citizen would be outraged.

Oil trains are too dangerous for the rails — the railroad system and our cities were not laid out with this kind of explosive cargo in mind.

Key fact: nobody puts out oil train fires. Standard procedure is to retreat a safe distance, attempt to contain the fire and stop it from spreading.

A recent oil train derailment and fire in Mosier, Oregon, was the last straw for many fire officials.

Sheer luck, and a rare windless day in an area noted for its high winds, spared the town from a Lac Megantic — like disaster but angry local citizens and officials were horrified, realizing how close they had come to a catastrophe.

Incredibly, the railroad tracks were inspected just a few days before the incident – yet defective track bolts caused the derailment. In addition, the town’s fire chief was amazed to be informed by railroad safety officials that covering the burning tank cars with foam would be ineffective — the metal was so hot that the foam would just evaporate.

After the Mosier fire, the governor of Washington, Oregon’s department of transportation and the Association of Washington Firefighters called for an immediate moratorium on crude oil train traffic.

In addition, Jim Hall, former chair of the National Transportation Safety Board, called for an end to rail shipments of crude oil, saying “enough is enough.”

After the fire, Jim Appleton, Mosier’s fire chief, noted: “I hope that this becomes the death knell for this mode of shipping this cargo. I think it’s insane.”

We agree.

The photograph: Fred Royal addresses a news conference on July 6 with tank cars parked on the bridge over Capitol Drive in the background. — CREDIT: Sue Bietila 

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.”

89 percent of voters back GMO labeling

By an overwhelming margin, U.S. voters say consumers should have the right to know if their food is genetically modified, with 89 percent in support of mandatory GMO labeling, according to a new national poll.

Nearly the same number of consumers would like to see the labels in an easy to read format. 

The survey by The Mellman Group confirms previous polls that found heavy support for GMO labeling. The new poll shows labeling is supported by large majorities of Democrats, Republicans and independents, as well as people with favorable or unfavorable views of GMOs. Overall, 77 percent of respondents were strongly in favor of labeling. 

The poll, commissioned by a coalition of consumer and environmental groups, comes at a timely moment. In Congress, some lawmakers want to add a provision to the omnibus spending bill that would block states from requiring GMO labels for produce and processed food, as would the so-called DARK Act passed by the House last summer. 

The U.S. Food and Drug Administration just approved the sale of genetically engineered salmon — which grows to maturity twice as fast as normal salmon and is cobbled together from the genes of different species — but the FDA will not require the salmon to be labeled. Other key findings of the poll include:

• About 88 percent would prefer a printed GMO label on the food package rather than use a smartphone app to scan a bar code.

• Just 17 percent say they have ever scanned a bar code to get information, and only 16 percent sat they have ever scanned a “QR” code.

• If bar codes were used, more than 80 percent say food companies should not be allowed to use the app to gather information about shoppers.

“Americans have yet again expressed an overwhelming desire to know what’s in their food,” said Jean Halloran, director of food policy initiatives for Consumers Union, the policy and advocacy arm of Consumer Reports. “Shoppers want to see clear labels on food packaging that tell them if products are made with genetically engineered ingredients without having to use confusing codes or smartphone apps. We hope lawmakers hear consumers’ call for meaningful, mandatory national GMO labeling.”

“Everyone needs information to make informed food choices, not just those who have smart phones,” said Wenonah Hauter, executive director of Food & Water Watch. “There is no acceptable substitute for mandatory on-package labeling of GMO food.” 

“GMO labeling via QR code technology is unworkable, threatens privacy and is discriminatory since more than a third of Americans, many of which are low-income or live in rural areas with poor internet access, don’t own smartphones,” added Lisa Archer, food and technology program director at Friends of the Earth. “FDA’s approval of GMO salmon makes it all the more urgent that Congress require mandatory, universally accessible GMO labeling that any consumer can read on the package when they’re choosing what to feed their families.”

“QR code labeling discriminates against the poor, minorities, rural populations and the elderly. They are a completely unacceptable substitute for clear, concisely worded on package labeling,” said Andrew Kimbrell, executive director at Center for Food Safety. “The right to know is a right for all, not just those who can afford it.” 

“This is yet another poll that shows broad and deep support for clear GMO labeling at a time when the issue is more important than ever,” said Scott Faber, executive director of Just Label It. “Food manufacturers and lawmakers should work together to give Americans a more transparent food system by crafting a non-judgmental, mandatory GMO labeling system that is easily found on the packaging.”

Thousands of Gov. Walker-related emails released

Thousands of emails prosecutors collected during the first secret investigation into Wisconsin Gov. Scott Walker’s former aides and associates when he was a county executive were released on Oct. 21.

The public release of the documents prompted allegations from Walker and other Republicans that the timing two weeks before the election was politically motivated but freedom of information advocates and Democrats said the release of the documents was a long time coming.

Milwaukee County Executive Chris Abele’s office made public the nearly 16,000 emails and attachments that prosecutors seized from county and personal computers during the investigation that ended in 2013. Walker was never charged but six of his aides and associates were convicted on charges ranging from theft to misconduct in office.

The documents’ release comes in the midst of Walker’s fierce re-election contest against Democrat Mary Burke. A Marquette University Law School poll released last week showed the race is tied.

Burke released a new campaign ad two hours before the emails were made public that mentions the convictions and says the state can’t afford four more years of Walker. Burke told reporters before she voted early in Madison on Oct. 21 that the timing of the ad wasn’t based on the emails’ release.

“The timing is about that people when they go to the polls need to consider his entire record over the last four years when looking at the next four years,” Burke said. “Part of that, not only a lagging economy and historic cuts to education, but certainly the scandal around his administration.”

Burke said she never discussed the release of the records with Abele. And Paul Bargren, the attorney for Milwaukee County who oversaw release of the records, said in an email that when to release the records was up to his office alone. Abele was not involved, Bargren said.

“As material was ready for release, I chose to make it available rather than hold on to it,” Bargren wrote.

Walker, in a prepared statement, noted that Abele, his wife and campaign committee had donated $63,000 to Burke. Walker said releasing the emails now so close to the election was designed to “distract voters from my opponent’s failed record.”

The emails released were collected during the first secret investigation, known as a John Doe, involving Walker. Included were more than 1,000 pages of emails sent and received by Walker from private and campaign accounts. The messages, many of which were sent during Walker’s 2010 run for governor, show county staff interacting with those on Walker’s gubernatorial campaign, discussing strategy and seeking advice on how to answer questions from reporters.

It had been previously revealed that Walker held daily calls with county workers and those on his campaign.

A judge in May turned over the 500 gigabytes of records to Abele’s office and ordered that they be released. Two previous batches of documents were released by Abele’s office in August and September and 27,000 pages of emails collected during the investigation were previously released as part of an appeal made by one of Walker’s aides convicted of misconduct in office.

A second John Doe investigation was launched in 2012 focusing on alleged illegal coordination between Walker’s recall campaign and more than two dozen conservative groups. That investigation is on hold after the judge overseeing it in January blocked subpoenas prosecutors requested.

That case is pending before the state Supreme Court.

Associated Press writer Todd Richmond contributed to this report in Madison.

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