WILL Blog | Kamenick: Thanks to open government laws, you get to be in the room where it happens

Published on: March 18, 2016

This blog post is adapted from my prepared comments for the Open Government Travelling Show

Helping people make open records requests 

At WILL, I spend a significant amount of time helping ordinary citizens, local journalists, and watchdog groups with open records requests.  If you’re looking for assistance, I can help you draft a request, help get records a custodian refuses to turn over, and even help review the records you receive.

A sampling of some of the requests we’ve helped with at WILL:

  • A requester waited over two years to get records from the GAB. We got them less than a month after sending a letter
  • We helped a former UW researcher get access to his own research records
  • We helped an individual get records from DATCP related to a raw milk prosecution
  • We helped a group craft a very specific request for budget records from the Green Bay School District
  • We’ve convinced custodians to turn over electronic copies of emails instead of paper printouts
  • We’ve fought back attempts to hide employee misconduct due to “embarrassment”

If that doesn’t work, we sue

Sometimes letters and phone calls don’t get results, and we will file lawsuits to get records.  One of our biggest successes was a lawsuit against Democratic State Senator Jon Erpenbach on behalf of the MacIver Institute.  MacIver had sent record requests to many lawmakers seeking copies of emails they had received regarding Act 10.  Most of them fully complied, but Erpenbach redacted the senders’ names from every single email.  We sued, and got a very powerful opinion from the court of appeals that the public has a right to know who is trying to influence legislators.

We just recently settled a lawsuit against the Jefferson County Sheriff’s Department.  Law enforcement agencies around the state have been redacting very basic information from records like citations and incident reports – basic information like who got the citation!  These redactions are based on what we consider to be an overcautious reading of a 7th Circuit Court case, and we’ve been fighting against it.  Jefferson County agreed to turn over unredacted copies of the records sought by Matt Kittle of Wisconsin Watchdog.

We also sued to obtain copies of syllabi from University of Wisconsin schools on behalf of the National Council on Teacher Quality.  The UW had permitted each professor to decide whether or not to turn over their syllabi, but that’s not how the open records law works.  The records custodian for each university must make that determination, and there is no legal justification for withholding those syllabi.  After we sued, the UW settled, providing NCTQ with the requested documents.

We do open government work on our own behalf

Even when we don’t have a client, we’ll often release public statements or open letters on salient issues.  Last summer when the Joint Finance Committee snuck last minute changes to the open records law into the budget, we released a joint statement with MacIver in opposition to the changes.  The changes were quickly dropped.  When the Public Records Board quietly expanded the types of records deemed “transitory” (meaning they can be immediately destroyed), we sent them a lengthy legal analysis of why the change was not only legally wrong, but bad for the state.  The expansion was reversed at the board’s next meeting.

We also file our own records requests.  We have one with the IRS that’s been outstanding for about 18 months.  Every 3 months like clockwork, they send us a letter saying they’ve given themselves another extension.  (Under federal law, which overall is much weaker than Wisconsin’s, they can actually do that.)  We haven’t decided yet if we’re going to sue or start an office pool on just how long it will be before we get the records.

We’ve filed numerous requests with the Milwaukee Public Schools for records related to their unused school buildings.  (Quick aside – MPS is the second largest government entity in the state after the State itself, with a budget of over $1 billion, yet they only have a single person working part-time to fulfill records requests.)  MPS’ declining enrollment has left them with unused and underutilized schools that cost taxpayers millions in maintenance. Public charter schools and private voucher schools alike have expressed interest in buying and renovating those buildings, but MPS has largely been uncooperative in selling.  The records gave us information for multiple reports on the topic, which in turn led to legislation that’s helped move the sale process along.

A quick sampling of other requests we’ve made:

  • To the DOJ, for all constitutional challenges to statutes
  • To the United States Department of Justice for records related to their now-closed investigation into the MPCP
  • To the City of Milwaukee, for documents related to the streetcar
  • To the DPI, for any discrimination complaints filed against private voucher schools (there were none)
  • To the Wisconsin Supreme Court, for statistics on case filings
  • For union contracts and other documents related to negotiation, to numerous entities such as the Milwaukee Area Technical College, the Whitewater School District, the Madison Metropolitan School District, and Dane County

We do open meetings work, too

The open meetings law doesn’t get as much attention as the open records law– either in public discourse or in the courts.  The issue simply doesn’t have the same concrete reward as records.  At the end of an open records request or lawsuit, you’ve got documents (and hopefully some juicy information) in your hands.  At the end of an open meetings complaint, you have, in most occasions, little more than a judgment saying the government entity broke the law.  Even in the rare circumstance where a judge will undo a government action that, for example, was illegally done in closed session, the governmental body can just do it again in open session.

But we litigate in this area.  Our first case was an open meetings case – when the Milwaukee County Board did its redistricting, it failed to properly provide advance notice.  Agendas that explain what a board plans to do must be released to the public 24 hours in advance.  In another case that is currently in the court of appeals, we sued the Appleton Area School District.  They created a committee to review book list for their ninth grade English courses, but then refused to hold that committee’s meetings in open session.  Any meeting of a governmental body must be held open to the public.

We’ve also used the open meetings law to make sure local units of governments don’t try and skirt Act 10’s requirements – for example by holding secret collective-bargaining-but-not-really-“collective-bargaining” meetings with unions (see the Racine school district).  Or by deciding to collectively bargain with your unions in direct violation of Act 10 without telling your constituents about it (see the Milwaukee County Board).

We’re looking to push the cutting edge of open records law

Finally, let me share some areas we are encouraging requestors to be aggressive in.

Anonymity – You can file requests anonymously.  Custodians can’t refuse you records because you don’t identify yourself.  Use fake email accounts to make requests.  Or use an attorney (like us) to do it for you.

Electronic records – No court has ruled on this yet, but we believe custodians must provide you with electronic copies of records if you ask for them in that format.  If you ask for Word documents, PDFs, or emails in their “native” format, they should have to give them to you that way, on a CD, DVD or flash drive, or via email.

Copy charges – Most custodians charge you $0.25/page for copies.  Why?  They are only allowed to charge you the “actual” cost of photocopying.  Do you think they made even a minimal effort to estimate what the cost of toner, paper, electricity, and labor is?  Of course not.  They pick a nice round number because it’s easy – just one quarter.  But why that quarter?  Because the Attorney General’s compliance guide suggests that charges should be “around” $0.15 per page, and that anything over $0.25 is “suspect”.  But I think $0.25 is suspect.  You can get copies done at Kinko’s for about $0.12 a page, and they make a profit doing that.  The actual cost must be something less.

The Room Where It Happens

In the smash hit musical Hamilton (telling the story of founding father Alexander Hamilton through hip-hop music), antagonist-cum-narrator Aaron Burr sings that he wants to be in “The Room Where It Happens”.  He’s regretting being left out of the back room negotiations that led to trading the nation’s capital to a southern state in exchange for approval of Hamilton’s financial plans.

Thanks to open government laws, we get to be in that room where it happens!  I mean that quite literally when it comes to open meetings – when a government body deliberates, you get to watch.  It’s not quite that accessible for individual decision-makers (we can’t quite fit the public into the governor’s office).  But we still get the most practical substitute – all the written records of that deliberation can be inspected.

It’s not perfect.  We all can think of ways the law could be improved.  But I’m glad we have it.  Use it early and often.