Know your rights when it comes to open records

I had the privilege of attending the Wisconsin Newspaper Association Convention in Madison last week, including a session titled “Strategies for requesting open records and overcoming denials,” presented by Max Lenz and Brian Spahn, media law experts at Godfrey & Kahn law firm. While intended for journalists, the information presented could be helpful for anyone requesting public records from a government office. It’s critical that our elected officials maintain transparency and are held accountable to the constituents. A big part of that is constituents having access to information about how taxpayer money is being spent and how officials are carrying out their roles.

That being said, here are some highlights from the presentation. One disclaimer: I’m not a lawyer and this is the Cliff ’s Notes version, so recognize this is not going to cover all the nuance of the law. When in doubt, go back to the state statute or seek legal counsel.

First, it’s important to remember that Wisconsin law has a presumption of access. Records kept by our government are presumed to be open to the public.

“This is something to keep in mind and use to your advantage when working with custodians and legal authorities. The deck is always stacked in the favor of access,” said Lenz. Under Chapter 19 of Wisconsin State Statutes, members of the public can make requests of an “authority,” which could be a state or local official; a government agency, board, commission or committee; or a government or quasigovernment corporation. Records are kept by a “legal custodian,” the person in which power is vested to carry out the authority’s public records responsibilities. It could be the elected official or a designee within that official’s office. There is no requirement that a public records request be made in writing. However, it is advisable to do so in writing, because when a request is made in writing, the response has to be in writing. The requester does not have to identify himself or herself, nor state the purpose of the request.

The request must be “reasonably specific,” per state statute. It must sufficiently state the time frame and the people involved. Lenz said that the more specific the requester could be, the more likely they would get a quick response. The response must be given “as soon as practicable and without delay.”

If the custodian denies the request, there are specific guidelines they have to follow. If the request is in writing, the denial must be in writing. The reasons for the denial must be “specific” and “sufficient.” If confidentiality is required by the statute, the custodian must cite the statute in their denial.

“The custodian cannot merely cite a statutory exemption or state that disclosure is not in the public interest,” said Spahn. “The government has the burden to explain why the public interest outweighs the presumption of openness. They have to give a clear reason why.” A denial of a written request must also inform the requester that the denial is subject to review via a mandamus action.

Some statutory exemptions, or justifiable denials of a request, include private information of employees, information related to the current investigation of employee-related misconduct – however, this does not apply to the investigation of a public official, district attorney (DA) prosecution files, patient healthcare records, pupil records and records involving juveniles.

The custodian also has a duty to redact. If part of the record is not subject to an exemption, that part must be disclosed. The authority cannot refuse to redact a record just because redactions are burdensome. Spahn said he had seen multiple examples in which the custodian provided a 100-plus page report to the requester, but the pages were completely blacked out, rather than only redacting the parts subject to an exemption.

“Over-redacting is someting we see all the time. They do not properly redact, frankly because of laziness,” said Spahn.

The state statute also addresses the cost of accessing government records. The cost can include copy and transcription fees, photography and photographic reduction fees, the cost to locate the files (only if it exceeds $50) and mailing and shipping. Fees are limited to “the actual, necessary and direct cost.”

“There was one example where I had someone call in – they submitted a records request in a small town in Wisconsin and the cost was very high, thousands of dollars. So I encouraged them to ask for an itemized breakdown and when they did, they found out they were charging location costs for village employees at $80 and $90 per hour. And it seems unlikely to me that small municipalities in Wisconsin are paying their employees that much... So those are the sort of things you can learn and then push back on,” said Lenz.

Spahn and Lenz said they often get calls to their hotline from people asking if they should submit a public records request. They always encourage people to submit a request. There is nothing prohibiting a person from submitting a request on any topic, and just because there may be reasons to deny, it doesn’t mean the request will be denied.

The lawyers have also frequently been asked if the police department can legally deny a records request because of an “ongoing investigation.” The answer is, well, it depends. “The fact that an investigation is ongoing and has been referred to the DA’s office is not a public policy reason sufficient to deny access. However, if the law enforcement agency states that disclosure may prejudice the ongoing investigation or hamper crime detection, those policies against disclosure will likely outweigh policies giving access,” said Spahn.

He also clarified that Marsy’s Law does not provide absolute denial of access to information about crime victims contained in records. If a requester feels they have been wrongfully denied access to public records, a first step would be for them to explain the faults in the denial explanation to the custodian and request they disclose the information. They can also seek legal advice and have a lawyer write a warning letter. If that fails, they can request the local DA or attorney general take action.

For more information, go to doj.state.wi.us and search “Office of Open Government.”

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