FOIC audit finds that what goes on behind closed doors often stays there

By Sara Winter

Many Wisconsin school districts either do not keep detailed minutes of closed session meetings or failed to turn them over in the recent public records audit conducted by the Wisconsin Freedom of Information Council, highlighting one area of controversy over the state’s Public Records Law.

“I don’t think that there’s any justification for withholding the minutes period,” said Christa Westerberg, an attorney and vice president of the Freedom of Information Council. “There’s basic information in there that isn’t subject to any exemption such as who was present, usually that’s listed at the top of the minutes, the length of the meeting, and at least some of the items on the agenda that were up for discussion.”

But a number of school boards didn’t turn over any closed session minutes in the recent survey of 65 school districts, while several others said requesters would have to file a lawsuit to gain access to them. Only a few school boards turned over minutes that redacted sensitive information, which many experts say is the proper practice.

Frank Crisafi, legal counsel for the Madison Metropolitan School Board, says the matter of public access to closed session minutes and agendas is indeed a delicate one.

“What’s unique about closed session minutes is the inherent inconsistency one can read into that request – making public closed session minutes” said Crisafi. “Any minutes that are taken are pursuant to that legal parameter that you have to go into closed session, and to make them public…some people see that as a difficulty.”

Crisafi says his view is that “it’s not an all-or-nothing proposition, there may be circumstances where if you can redact the record to protect confidentiality, you can release the balance of it.” 
           
For the FOIC audit, requesters asked for “copies of meeting agendas and minutes that show each occasion when the school board went into closed session in April, May and June 2008” from each of Wisconsin’s 72 counties. Because the audit did not include a comparison of the responses to agendas of closed session meetings, it was not possible to determine just how many school districts held closed session meetings without turning over minutes. But anecdotally, a review of the write-ups suggest this regularly occurred.

Closed session school board meetings are governed by the Open Meetings Law, which cites 13 reasons  boards  may go into such sessions, but mandates that members  vote on the motion to enter a closed session in an open forum.

These 13 reasons are primarily in place to protect the interests of either the district or the reputation of an individual.  Examples of such justifications for closed session include a discussion over the minimum bid the district will accept when selling a property, or the expulsion hearing of an underage student, says Dan Rossmiller, director of government relations for the Wisconsin Association of School Boards.
 
Despite these 13 justifications, Rossmiller acknowledges that the statute allowing closed meetings and the public’s right to access can be a little unclear. 

“The law is a little bit complicated and there have been cases over the years that have tried to deal with the ambiguities in it,” he said.

But Westerberg sees these ambiguities as a major part of the problem as she has seen “over representing the situations where you need to go into closed session.”

Westerberg agrees that there is also a huge issue with confusion surrounding closed meetings and access to their minutes.

“I agree that there’s a lot of inconsistency across the state because either there’s not enough authority on some issues, but I think more often the problem is that people just don’t understand the law”

Due to the fragile nature of public access to closed session minutes and agendas, several FOIC auditors were referred to county attorneys upon their records requests.  The Green Bay school district, for example, had attorney Ann Patteson respond to the request for closed session meetings and agendas.  Patteson apologized for the district’s initial response that the minutes were off-limits, and turned over redacted copies.

While a blanket denial of access to all closed session minutes is plainly suspect under the Public Records Law, lawyers say denial of minutes – or at least the release of heavily redacted minutes – might sometimes be in order. Crisafi cites as an example a union bargaining event that was mid-discussion.

“If someone were to ask for those ten minutes after the meeting or the next day, that would be a factor in determining whether or not to release them, given what those minutes reflect with respect to bargaining strategy,” Crisafi said.  “If you were to ask for those minutes of the same kind of meeting two years ago, it’s probably not as much of a consideration because the time has passed, the agreements have been made, and the necessity for the closed-session protection wouldn’t be there.”

Another issue exposed by the audit was the skeletal nature of closed session minutes in general.  The lack of parameters for taking minutes during these meetings contributes to their ambiguity.

“It can be in their [the school board’s] best interest to take more detailed minutes and it’s certainly in the public’s interest if they can take detailed minutes,” said Westerberg.

But it’s clear that most school districts don’t keep detailed minutes of closed sessions, or they outright ignored the portion of the audit’s request seeking them.

“The bigger issue on trust is not with open meetings, but with open records because you have to trust that they’re telling the truth as to what records they have,” Westerberg said. “People don’t know they have records, or they know they have them but they don’t want to give them to you so they say they don’t have them.”