Making Democracy Work

Wisconsin Freedom of Information Sunshine Week Report

13 Open Government Problem Areas have been identified by the Wisconsin Freedom of Information Council. Here is a short version of the best practices that are recommended in each "problem area". You can find the complete version which identifies the problems and the recommended best practices to solve each at http://www.wisfoic.org. If you have any questions about Open Records Laws or Open Meetings Law check out the Frequently Asked Questions (FAQ) at the same website. You can also download a sample request letter.

1. High costs

Best practice: Records custodians who charge between 10 and 25 cents per page or who waive the fee altogether, as the law allows at 19.35(3)(e).

2. 'Draft' status.

Best practice: Once a document is shown to anyone besides the originator or a person working on his or her behalf, it is no longer a draft. Records custodians should also release early versions of document to show how they were changed as the result of review, reconsideration or outside pressure.

3. Police and prosecution records.

Best practice: Police should allow the maximum access that prosecutors in their jurisdiction will allow. Prosecutors should restrict access only to records that compromise their ability to prosecute a case or the defendant's right to a fair outcome. And prosecution case files should be public records subject to the balancing test at the conclusion of a case.

4. E-mail records.

Best practice: E-mails and other electronic records should be maintained as long as practically possible, and each unit of government ought to strive for efficient systems for storage and recovery. Officials need to be reminded that e-mails, including government-related communications on their home computers, are records under the law. This is an area where it would be useful to have clearer standards and direction, perhaps from the Attorney General's Office.

5. Delays

Best practice: Custodians should obey the letter and spirit of the law, and promptly provide access to requested records. Generally speaking, records requests should be satisfied within 48 hours. And it might be necessary to bring legal action against custodians who cause unnecessary delay, especially if done to prevent embarrassment or promote a particular legislative or electoral outcome.

6. Attorney-client privilege

Best practice: The exemption for attorney-client privilege should be construed as narrowly as possible, applied only when access would compromise a public body's ability to negotiate or compete.

7. Quasi-governmental entities

Best practice: Quasi-governmental corporations, as well as bodies "created by constitution, statute, ordinance, rule or order," are explicitly included in the definition of "Governmental body" in both the Open Records and Meetings Law and must abide fully by the requirements of these statutes.

8. Closed meetings

Best practice: Meetings of public bodies should almost always be open to the public. Exemptions to this rule should be construed as narrowly as possible. This is an area in which the state Legislature could show leadership by opening its caucus sessions to the public.

9. Items not on the agenda

Best practice: Public bodies should specifically reference all items of business they intend to take up, so that citizens with an interest in these areas can attend. Vague subject headings like "Mayor's Report" or "New Business" should be avoided in favor of more precise agenda items.

10. Medical privacy

Best practice: Medical privacy rules should not preclude sharing information with family members or other loved ones, nor should it prevent the release of information about matters of public health, so long as individuals are not specifically identified.

11. Blocked access

(this most often applies to photographers who have been barred from accident sites or from taking pictures of public officials performing their duties) Best practice: The public has a right to know and see what is going on. Public officials need to respect the legal right of reporters and photographers to have access to public places.

12. Privacy protections

Best practice: Custodians need to recall the Open Records Law's declaration that "all persons are entitled to the greatest possible information," not search out excuses to withhold it. Moreover, if a record is too private for the public to see, why are government officials collecting it?

13. Lack of awareness

Best practice: The media and other advocates of openness need to do a better job of explaining their interest in public information, and to highlight the discretion they exercise as to its dissemination. We need to more clearly convey that the Open Records and Open Meetings Law exist for the benefit of all citizens, not just members of the press and others with a professional interest in the affairs of government.