2008 Public Records Audit

Educating public officials about Public Records Law a continuing challenge

By Abram Shanedling

One town clerk said she was too busy to answer a public records request. A school secretary demanded that a person put in writing a request to see school board minutes. A sheriff’s deputy wanted to know why a reporter wanted to see a list of people booked into the county jail.

Each of these situations occurred in the past year. And most importantly, each represented a violation of the Wisconsin Public Records Law.

In the early 1980s, the State of Wisconsin enacted two statutes to preserve its citizens’ rights to an open government. The resulting open meetings and public records laws declare in their preambles that an “informed electorate” and access to information are essential to the foundation of our democracy.

But in practice, some have found these laws leave a gray area when it comes to the training and professionalism of the government employees who must deal with public requests.

“They are a fairly easy set of laws to understand, but this isn’t the case for everyone,” says Peter Fox, the executive director of the Wisconsin Newspaper Association. Fox says he is worried many public officials and records custodians are not receiving proper training about the specifics of the statues and the procedures for upholding the freedom of information law.

At his other position, on the board of directors of the Wisconsin Freedom of Information Council, Fox says newspaper editors and reporters contact him almost every week about open meetings or public records violations.

“By in large, the greatest problem in interpreting and understanding the statues arises at the local government level,” Fox said. “There are a lot of citizens who are elected to departments and it’s often their first exposure to the issue of open records and open meetings.”

Wisconsin’s public records law holds that in general, all government records must be made available upon public request “as soon as practicable and without delay.” Similarly, the open meetings statue provides that all government meetings must be open to the public, except in a few, specific situations.

Roger Allen, an attorney for the City of Madison, said records custodians in each of the municipal departments have received internal training about the public access laws, partially through public, online workshops. He explained that custodians are taught to refer cases to the attorney’s office when records requests are “overly broad or place an undoable burden on the agency.”

Allen estimates that, on average, his office makes four consultations a week about open meetings and public records law. He says this ranges from simple phone conversations to more complex requests that may require advanced research and analysis.

Similarly, if the city attorneys are unsure of how to respond to certain requests, Allen says they will sometimes work with the Wisconsin Attorney General’s Office.

Yet Allen admits that while training is certainly important for public officials, it is only one factor. “You need capable people who understand the philosophy of the law in order to uphold it,” he said.

According the federal Freedom of Information Act, enacted in 1966, when the law isn’t clear about a certain information request, legal custodians must use a “balancing test” to weigh the public interest in obtaining the materials against the various privacy concerns of the government (and even the public).

However Fox says many public officials don’t grasp this concept and would rather provide information they think the public should have, instead of taking into account what was specifically requested.

“In a lot of cases, these aren’t people who are malicious. They are people who just flat out don’t know how to answer the questions and how to act according to the statues,” Fox said. “That’s where training should come in.”

So what’s the state doing to educate its public officials?

Currently, the Wisconsin Department of Justice and Attorney General J.B. Van Hollen host a series of seminars throughout the state on open meetings and public records law compliance. This year, conferences were held in September and October in Green Bay, Eau Claire, Wausau, Milwaukee and Madison.

Governor Jim Doyle, then the Attorney General, first created the seminars in 1991, making them free and open to the public. This year, the sessions attracted 764 registrants from across Wisconsin.

“This is one area of the law where we’re supposed to provide the answers and advice to anyone who asks,” said William Cosh, spokesman for the Office of the Attorney General.

Cosh said attorneys who presented at the seminars thought this year’s series was “one of the best they’ve ever seen.” Unlike in past, the Attorney General’s office invited every state agency’s records custodian to attend the conferences and also specifically reached out to local school districts and school board members.

Cosh explained that the curriculum is designed to help public officials, and even the media, better understand their legal responsibilities and rights.

“One of the biggest changes Attorney General Van Hollen has pushed very strongly is to make sure that we fulfill records requests in a timely manner without delay,” Cosh said.

In addition to the statewide seminars, the Department of Justice has published “Compliance Guides” that outline Wisconsin’s open meetings and public records law and explain significant court cases that have impacted the law’s implementation. The two handbooks also define important terms and detail the procedures for handling requests as well as the penalties for not complying with them.

The guides, which have been revised and updated in the last two years, are given out at the state seminars and are also free to download at the Department of Justice’s Web site.

Daniel Mallin, legal counsel for the Madison Metropolitan School District, said school board staff have regularly attended the Attorney General’s sessions as well as similar conferences hosted by the Wisconsin School Board Association.

“I certainly think the concept of open government is appropriate to a school board, and the extension to both meetings and records makes a great deal of sense as a public policy,” Mallin said.

While the MMSD currently has no formal freedom of information training, it is unique from other school districts because it has an in-house legal counsel to deal with troublesome records requests or open meetings complaints.

Mallin says the legal services’ approach is to work closely with records custodians, walking them through the various legal steps necessary to respond to public requests - even to the point of helping draft responses.

“If you can just help [the requestor] understand what you’re doing to address the issue, and when they can exact a response, I think it’s probably as important as a step you can take,” Mallin said.

However, sometimes a challenge is simply keeping people up to date with new procedures or provisions in the law. For example, Madison is currently creating a new “fee schedule” to outline the costs associated with certain records requests, especially if they include technology like the recovery of old emails or having to make copies of multimedia documents.

Allen says the city’s legal office has done its best to inform city officials and the public about the changes in the records ordinance. But he says citizens are still sometimes hesitant to place records requests because they are unsure if they will be processed correctly.

“Anytime you have a law in the books and lay people dealing with attorneys, challenges will arise,” Allen said. “Our process of revising shows it’s key to have open dialogue between records custodians and citizens to ensure requests are met in the best way possible.”

Meanwhile, Fox thinks the media should also play a part in the solution, by working with specific units of local government to hold annual orientations on open records and open meetings law.

Fox says the sessions could help refresh government employees and also help familiarize new employees with resources they can use to uphold the provisions of the law.

“The curriculum is there. The information is there,” Fox said. “It’s a matter of getting it to the people who need it, and for those people to be aware that they do need it in order to help serve the public.”