Here & Now

Noon Wednesday: Keeping Public Records Public

Marisa Wojcik:

Welcome to Noon Wednesday. I’m Marisa Wojcik, a multimedia journalist with Here & Now on Wisconsin Public Television. So new concerns are being raised over transparency and costs associated with open records requests. Democratic Governor Tony Evers’ administration has decommissioned a website that tracks these open records requests and additionally, Republican lawmakers have been charging high fees just for electronic copies of these public documents. So joining me to discuss access and openness to public records is Bill Lueders. He’s the president of the Wisconsin Freedom of Information Council. And thanks so much for being here.

Bill Lueders:

Sure, good to be here.

Marisa Wojcik:

So I want to start with just really basic for everyone. What does a public record include? It can be a whole bunch of things.

Bill Lueders:

Well, really any document that is in the possession of a state or local public official, elected or not, is considered to be a public record. It’s presumably open to any member of the public who asks for it, so everywhere from a city streets intendant to the governor are subject to our open records law and it basically says that if someone asks for a record, you have to provide it unless you have a pretty darn good reason not to. And there are some exemptions, but you have to explain why you’re not giving a record and you can be sued if you give a reason that’s not legally defensible.

Marisa Wojcik:

And you personally, as your years in journalism, have done numerous records requests. So why is it important to request and review these documents? Can you give us some examples?

Bill Lueders:

It’s just fundamental to reporting if you’re covering almost any story, there are documents that are of value and sometimes they’re provided as a matter of course like minutes of meetings and agendas and so forth are just routinely available, and some things you have to fight for. There are other concerns that come into play, privacy or medical issues or there’s information within request that is considered privileged, Social Security numbers and things like that. And so there’s a balance that gets applied and my job is to argue that the balance should be on the side of openness as often as possible.

Marisa Wojcik:

One example that comes to mind is the transition from Governor Tony Evers from Governor Walker and there was a note left over in the governor’s mansion and it was a small note, but it was important for you to let the public see that.

Bill Lueders:

Yeah, we gave them hell about it. The initial response of Tony Evers’ administration was we’re not gonna let you see the note that Scott Walker wrote me during the transition from his administration to ours and it basically said no, you can’t do that. That’s a public record, you have to release it and you better not start doing stuff like this or you’re gonna have a really hard time. And within the course of an afternoon, the governor’s office changed its mind and released the note. There’s nothing earth-shattering in it, but it is the public’s right to know. You can’t have a governor communicating to the incoming governor and then saying, oh, this is all just secret.

Marisa Wojcik:

And speaking of transitioning from one administration to the next, there is a website that had been around from Governor Walker’s time, former Governor Walker’s time and the Wisconsin Freedom of Information Council even gave former Governor Walker an award for its openness to public records, partially because of this.

Bill Lueders:

Well, we gave him an award for something very particular. It’s that in 2016 and again in 2017, Governor Scott Walker issued executive orders which created new rules and expectations for state agencies. It created timelines that were stricter, shorter, I should say, than what are prescribed in state statute or even in the attorney general’s compliance guide. It said that routine records requests should be satisfied within 10 working days, that requests should be acknowledged within a single day, that if someone wanted an update on the status of the request, that should be provided within five days, that there should be a tracking by state agencies of the requests that they receive and their response times so that they have a tool for knowing how well they’re doing and ideally, we’ll use that to do better to reduce their response times or try to. All of these things were established by executive order of Scott Walker. This is a great thing that these changes were made. He didn’t have to do it, but he did, and it did result in the public having quicker access and more dependable access to records. Well, a conservative group, the Wisconsin Institute of Law and Liberty, did a survey to see how well state agencies were doing under Governor Evers and it found some problems. Some of the agencies were still abiding by those old rules, but there was a tracking website that was no longer in service that the Evers administration no longer maintains this website and most troubling to me is when this story broke this week, the spokesperson for Governor Evers said we follow the open records law, we don’t follow executive orders of past governors. Very concerning because the whole beauty of those executive orders is that they went beyond what the open records law said. They were a better deal in terms of transparency than what the state law prescribes. So to the extent that Governor Evers is no longer willing to maintain the commitment of those executive orders, it would definitely be a step backward.

Marisa Wojcik:

That same spokeswoman, Melissa Baldauff, said that the way in which this tracking was happening was clunky and inefficient and so it was taking away time from being able to fulfill these requests. Do you think that that’s a fair argument?

Bill Lueders:

Well, it might be. Come up with something better, then. Show us what you do. Show us how you can make a tracking system that’s more efficient and more useful and that serves that purpose of providing a benchmark that you can use to improve.

Marisa Wojcik:

And you were also quoted saying that in your experience thus far with the Tony Evers administration, you hadn’t seen much difference in how your records requests have been fulfilled on the administration side.

Bill Lueders:

Nothing dramatic. When Tony Evers first took over early this year, in January, there was a period where I don’t think they were anticipating the volume of records requests that they would have to deal with and there was just a certain amount of disorder that was part of the process. I think they’ve gotten past that now. Overall, in my own requests, I’ve not seen anything dramatic in terms of a change, but it still would be concerning to me if the governor’s office is no longer feeling it needs or state agencies need to abide by the standards that were set forth by Governor Walker’s executive orders, ’cause those were an improvement and we don’t want to lose that.

Marisa Wojcik:

So even if laws may not technically be broken, your role as president of the Council is to make sure we’re not backsliding.

Bill Lueders:

Absolutely, and indeed, ideally to push forward into greater transparency, there’s lots of things that Tony Evers could do if he wanted to improve transparency. I’d love to sit down with him and tell him what those things are. We have a whole list, in fact, it’s on our website. It’s called our legislative wish list on our website and you can see the things that we would like the state to do to improve transparency. If we have a minute, I’ll give you an example.

Marisa Wojcik:

Sure.

Bill Lueders:

One is to create a rule that says when a public body, everything from a local school board to a state-commissioned body, when that body goes into closed session, that somebody should be expected to turn on a tape recorder. And so if someone wants to challenge whether that meeting was in keeping with the law and whether what was discussed in closed session was within the exemption that was cited and it was proper for that meeting to take place in closed session, they can do so and that recording would be subject to judicial review. This would happen all the time. There would be a process that someone would have to invoke and then there would be a judicial review and someone could listen to the tape. I don’t think it would take many judicial reviews for the use of recording to almost automatically put an end to any abuses that are occurring ’cause just knowing that there’s a tape recorder playing that someone may listen to and catch you talking about things you shouldn’t be is gonna be enough of a deterrent. Very simple, this would be very simple to implement. It can be done statewide. It would be an advance. Why don’t we do that?

Marisa Wojcik:

Almost like having a patrol car on the side of the highway and just by someone seeing it, they’re slowing their speed.

Bill Lueders:

There you go, exactly, I slow down. (laughing)

Marisa Wojcik:

On the flip side, the legislature has seen some open requests that have been a little bit problematic this summer and it included a couple lawsuits. You were involved in one of them. Can you talk about that a little bit?

Bill Lueders:

Yeah, I actually sued a representative of the state legislature, Scott Krug, in 2016 because I had asked for records in electronic form and he declined or refused to provide them in electronic for me, wanted me to wade through a big stack of documents. It was very cumbersome and all I was looking for is particular correspondences, having them electronically, I could just type in a person’s name and find it automatically. Going through a stack of documents that was a foot tall or taller was just too much work. It was not what I wanted. And so we sued when he refused and we won both at the trial court level and we won at the state appellate court level. In fact, it was a unanimous decision at the state appellate court level earlier this year.

Marisa Wojcik:

And then also this summer, a teacher from the Madison area formerly in Milwaukee, Sheila Plotkin, also had her own huge bulk request of records she was looking for, constituent statements and feedback from folks during the lame duck session to understand what some of the responses from people were to their state lawmakers, but she ran into some issues. What happened there?

Bill Lueders:

It was the same thing. It was the same issue for Sheila Plotkin is she was denied access to records in electronic form. She sued. When my case was decided at the appellate court level and the state decided not to appeal, it was set a law and so her lawsuit was settled, too. They reached some sort of accommodation to pay legal fees and then the action was dismissed and she was entitled to the records that she had sought.

Marisa Wojcik:

Is there a moral of these stories here? I mean, instead of going through these huge lawsuits, is there a risk for any of this information to be given in electronic form? Shouldn’t it be easier and cheaper and not have costs associated?

Bill Lueders:

I would think it’s easier. It has to be easier to provide records electronically than it is to print out a stack of paper that is just cumbersome and bulky and takes a lot of time and involves additional costs, but what we’re seeing is now that legislators have lost that battle to provide records only in paper form, we are seeing occasions particularly among the assembly speaker Robin Vos and legislator John Nygren where they are insisting that requestors pay large amounts of money and they’re saying that it’s taking us all this time to find the records that you’re looking for. They didn’t have any trouble finding them when they were printing out on paper, but now that they have to provide them electronically they say, oh, it’s just taking us hours and hours of work to find the records.

Marisa Wojcik:

For search fees.

Bill Lueders:

Search fees. And so you have to pay us $400 or you have to pay us $700 before you can have access to these records. That clearly is abusive. I know that because not all custodians are imposing these fees. Some are saying, you’ve asked for the records, here they are, and then some players are saying, you’ve asked for the records, here’s how much you owe me. And so I think it is in bad faith. I think that it’s right for legal action and I think that’s really, truly unfortunate. It’s unfortunate and it’s harmful to the state’s reputation of open government and also costs taxpayers a lot of money. In my case, when I won after almost three years of litigation, the state of Wisconsin had to pay my attorney fees, which were about $100,000 and just about a month ago, the state also had to pay attorney fees from my advocacy group, One Wisconsin Now, which had been denied access to certain lawmakers’ email accounts, in fact particularly Robin Vos and John Nygren.

Marisa Wojcik:

Their Twitter accounts, right?

Bill Lueders:

Their Twitter accounts, they were denied access to those accounts. They were excluded from them and they sued. There was a federal case involving Donald Trump and the federal court said he couldn’t do that and here in Wisconsin, the court said that the lawmakers couldn’t do that. In that case, the legal fees were $200,000. So just in those two cases, Wisconsin taxpayers shelled out nearly a third of a million dollars to defend lawmakers seeking to keep things secret that the courts ultimately ruled should not be secret. So I think people should be outraged by that.

Marisa Wojcik:

Now that some of these have gone through courts, do you see kind of a bright spot of maybe we can put these electronic fees issues aside, we can move forward and some of these electronic requests will become more efficient and streamlined?

Bill Lueders:

I hope so. I think that obviously the records that are being provided in electronic, that’s for some people who are doing it already, they didn’t need a court decision to prod them in that direction, but yeah, it should improve access to records electronically. I wish that they weren’t coming up with some new mechanism to try to frustrate records requestors. Maybe it’ll take additional litigation to put an end to that, but it is a step forward, yes.

Marisa Wojcik:

And where do you see any sort of bright spots? Your organization has awards for people every year. What do you see as working particularly well?

Bill Lueders:

Well, I do think that it’s a good thing that there is strong public and institutional support for open government. There are a number of organizations including a large number of conservative organizations that make government transparency one of the things that they’re willing to fight for. That’s great. That helps us to have ideological diversity in our advocacy and I do think that there also is a certain considerable majority of public officials in Wisconsin at the state and local level who get it, who aren’t constantly fighting the expectation that they conduct the public’s business in public, that they’re down with that and they are willing to be as open as they can be, and in fact, I think it’s one of the ways that public officials can breed trust with the people that they represent, by saying, you’ve asked for it, here it is. You want to come to this meeting, it’s open. Those are things that officials do and half the public thinks that public officials are a bunch of crooks. I don’t think that’s true. One of the reasons I don’t think it’s true is because I’ve had years, decades of experience seeing how government really works behind the scenes. It’s made me more respectful of the work that public officials in the state of Wisconsin do.

Marisa Wojcik:

All right, Bill, well thank you so much for joining us.

Bill Lueders:

Sure, good to be here.

Marisa Wojcik:

For more from Here & Now and Wisconsin Public Television, you can visit wpt.org and thank you so much for joining us on Noon Wednesday.