Source: Lake Geneva Regional News

Open records not an open and shut case

by Dave Bretl

February 21, 2013

Two interesting cases were recently decided by the Wisconsin Supreme Court regarding our state’s Public Records Law.

Both decisions came down in favor of public access to records kept by local government. I have come to regard almost any court decision interpreting the Public Records Law as a good thing.

Those of us who are custodians of records often find ourselves between a rock and a hard place when it comes to fielding requests.

Denying access to records can lead to a lawsuit from the person requesting them.

Releasing information can lead to a lawsuit, as well, if the person who is the subject of the record feels his or her privacy rights were violated by the disclosure. It’s never the mundane records that create complicated issues. Requests for copies of documents like meeting minutes, resolutions and contracts are easy to handle.

The problem is that people, and especially reporters, almost never seek mundane documents. They want the interesting ones like personnel investigations and employee discipline records.

I can’t blame them. If I were a reporter, I would ask for the same information. Any reported court decision, therefore, even those in which local governments lose, provides valuable direction to the rest of us.

The first case decided by the high court originated in the city of Milwaukee.

Two newspaper reporters there requested several thousand pages of crime reports from the police department. How crime was being classified by the Milwaukee police had become a source of controversy.

The police maintained that serious crime was on the decline. Critics charged that the department had simply changed the way it reported crime, characterizing serious incidents as minor offenses.

In response to the reporters’ requests, the city indicated that it, indeed, had the records, but that many of them contained confidential information. That wasn’t a problem, in and of itself, because the law provides that if a document contains both confidential and non-confidential material, the record custodian must blacken out or redact confidential information and provide the rest.

The reporters didn’t dispute the fact that redactions were required. The records they sought related to sexual assaults. Victims of those crimes have some obvious privacy concerns.

The issue that arose was who should pay for the time that would be required to review each record and blacken out the private information. When the city said that it would need to be paid $3,500 for its efforts the reporters went to court.

The city argued that it was more fair for the records requester to pay for the work than for the taxpayers to pay. It also cited provisions of the law that allow governments to charge the actual, necessary and direct cost of reproducing records and locating them when the cost to do so is $50 or more. Redacting, as far as the city was concerned, was part of locating and reproducing the records.

The Supreme Court didn’t buy Milwaukee’s argument and ordered that the redactions be made at the city’s expense. Interestingly, however, a majority of justices urged the State Legislature to take a look at the law. Justices noted that large document requests could swamp local governments and that businesses should not be able to mine public records, at taxpayer expense, and make a profit from the exercise.

Taking the justices up on their suggestion, at least one legislator plans on introducing a bill in the upcoming session on the topic of redactions. Concerned that taxpayers will be saddled with costs associated with large records requests, Representative Garey Bies is reportedly drafting a proposal.

A second Supreme Court decision was handed down in a case originating in Juneau County.

A newspaper there was interested in reviewing legal bills that the county incurred defending a lawsuit against its sheriff.

The county claimed it did not have to furnish the bills because it had no direct contract with the lawyer defending the county. The county contracted with an insurance company that, in turn, hired the lawyers.

Legal bills often raise the issue of confidentiality because of the privilege that exists in attorney-client communication. In this case, however, the county didn’t raise that defense. The court held that a provision of the law, which subjects records created by government contractors to inspection, applied to the “tripartite” relationship between the insurance company, outside attorney and the county.

The un-redacted bills, in that case, had to be released. Some commentators have expressed alarm that the attorney-client relationship will be compromised by the decision. Cynics counter that law firms representing government clients will simply make the descriptions on their bills more vague.

In the final analysis, it’s all taxpayer money that is involved. Public employees are typically not redacting records on their own free time.

Time spent gathering and reviewing records means less time can be spent providing other services. Whether a record request is harassment or serves an important public purpose is sometimes clear, but in other instances, very much in the eye of the beholder.

Every so often a “burdensome” request exposes government waste or wrongdoing.

Striking the balance between taxpayer cost and transparency in government should be an interesting debate to watch in the upcoming legislative session.

The opinions expressed in this column are those of the author and not necessarily those of the Walworth County Board of Supervisors.