Milwaukee Neighborhood News Service invites community members to submit opinion pieces of 500-800 words on topics of interest to central city Milwaukee. To send a submission for consideration, please email info@milwaukeenns.org. The views expressed are solely those of the authors.

The two most common complaints I hear from people seeking public records are “Why is it taking so long?” and “Why does it cost so much?” Unfortunately, it’s often difficult to mount a successful legal challenge to delays or fees because of the way the state’s laws are worded.

Wisconsin’s Open Records Law imposes no deadline on producing records. All it says is they must be produced “as soon as practicable and without delay.” What does that actually mean? While the state Department of Justice recommends that simple requests receive a response within 10 business days, the DOJ itself doesn’t heed its own advice, often taking months — even years — to fulfill requests.

Courts haven’t given much guidance. They’ve essentially said it’s a reasonableness test that takes into account the size and complexity of the request, the resources of the government agency, and whether they are making a good faith effort to comply. But how long is too long? 

Ideally, we’d have a deadline in our law, as some other states do. This may require prioritizing resources properly, which should already be happening. Fulfilling record requests, the law says, is “an essential function of a representative government and an integral part of the routine duties” of public officials.” And yet I’ve seen agencies with budgets in the hundreds of millions of dollars who have one person doing this work.

The other common problem with the records law is it allows custodians to charge fees for complying with records requests. Here, I am especially concerned about “location” fees. The government can charge for the “actual, necessary and direct cost” of finding records, typically at the hourly rate of the lowest-paid employee capable of searching. But sometimes this is still a considerable amount, and some custodians even want to charge for employees’ benefits.

This amounts to, essentially, the government getting paid twice for the same work. Our taxes already pay the salary or wage of the employee searching for records. The requester pays them again.

Permitting location fees also incentivizes government agencies to be sloppy in their recordkeeping. The more disorganized their records are, the longer it will take them to find records, so the more money they can collect from requesters. Those high costs also discourage requesters from following through with requests.  

For example, I’ve run into police departments that still store their personnel records in paper boxes, so if somebody wants, say, disciplinary records, the department can quote an often prohibitively high price to search each box for disciplinary files. Even if records are stored electronically, they can be hard to retrieve if they are not sensibly organized.

How can we fix these twin problems? If I were in charge (and I’m not), I’d put a strict deadline in the law and eliminate location fees altogether. But realistically, we are unlikely to see either reform. 

Perhaps a more practical solution would be to tie the two problems together. Change the law so that custodians can charge location costs only if the records are produced within a strict deadline — perhaps 10 business days.  

That compromise would incentivize better, more organized record keeping. Government agencies would now want to keep their records — especially those people frequently request — arranged in ways easy to search and easy to find. It would also incentivize them to devote enough resources to fulfill record requests promptly.  

The result? Requesters will get records faster and cheaper, and government agencies might also see a net increase in revenue, as more requesters opt to pay for prompt service rather than walk away.

Pairing these two issues is an idea worth pursuing.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Tom Kamenick, a council member, is the president and founder of the Wisconsin Transparency Project.

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All too often, secrecy and confidentiality carry the day in proceedings of state and local government. 

In one recent case, the name “Microsoft” on a state Public Service Commission filing was redacted – blocked from public view – along with pages and pages of other information. The redactions served no purpose, as the company’s role in the former Racine County site formerly known as Foxconn had been announced publicly in 2024 by then-President Joe Biden and widely reported.

PSC statutes indicate that utilities can keep only certain items from the public and for very discrete reasons – for instance, to protect competitive information or trade secrets. But in practice, secrecy is extended to a wide range of records. 

This is something I encountered in my reporting on utilities for the Green Bay Press-Gazette and Milwaukee Journal Sentinel from the late 1990s to 2017. And the number of confidential filings continued to be a concern in my current role at the Citizens Utility Board of Wisconsin, the consumer advocate watchdog for utility customers.

The problem is more urgent now, in an era of rapidly rising costs for utility customers and proposals for the building of huge, energy-gulping data centers now being proposed throughout the state. The stakes are getting higher.

Wisconsin’s utility system is undergoing a rapid-fire and massive transformation, arguably the biggest since the advent of widespread use of air conditioning 75 years ago, or even since Thomas Edison and Nicola Tesla were lighting cities for the first time using electricity.

Two such data center projects in eastern Wisconsin – Microsoft in Racine and OpenAI Oracle Vantage in Port Washington – would use as much power by themselves as all of We Energies customers used last year. You read that right: Two such data center projects in eastern Wisconsin – Microsoft in Racine and OpenAI Oracle Vantage in Port Washington – would use as much power by themselves as all of We Energies customers used last year. You read that right: These two centers combined would require as much electricity as all 1.1 million industrial, commercial and residential customers used last year, including the entire cities of Milwaukee, Racine, Kenosha, Port Washington, Waukesha and Appleton.

So it’s no wonder there’s more attention being placed, here and across the country, on the decisions being made by the three PSC commissioners in Madison and their counterparts across the country. This is especially true given that a new Marquette Law School poll found that a majority of state residents, Democrats and Republicans alike, believe that the costs of data centers outweigh the benefits.

In the case of the Port Washington data center, city leaders signed a development agreement that contains a very broad definition of  “confidential information” and then binds the city to assist the data center developer in defending any lawsuit seeking to release anything it considers confidential. 

Recently, the nonprofit law center Midwest Environmental Advocates had to sue the city of Racine to get water records for the Microsoft development. Peg Scheaffer, the group’s spokesperson, said “it’s more important than ever that technology companies like Microsoft be transparent about the environmental impacts these huge data centers will have.”

Fortunately, Wisconsin’s PSC is paying heed to these concerns. At a training session for the energy legal community in Madison earlier this year, the PSC put utilities and their law firms on notice that the agency will be taking a closer look at confidential filings and scrutinizing more closely the requests filed by utilities to keep information from public view.

That transparency initiative is overdue, and welcome.

Local and state government leaders enticed by the lure of economic development should take heed. Going forward, let us err on the side of more transparency, not less.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government. Tom Content is executive director of the Citizens Utility Board of Wisconsin and vice president of the National Association of State Utility Consumer Advocates. 

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Milwaukee Neighborhood News Service invites community members to submit opinion pieces of 500-800 words on topics of interest to central city Milwaukee. To send a submission for consideration, please email info@milwaukeenns.org. The views expressed are solely those of the authors.

In a 2007 ruling known as Zellner v. Cedarburg School District, the Wisconsin Supreme Court declared that because public school teachers “are entrusted with the responsibility of teaching children,” the public has a clear right to know about allegations of misconduct against educators.

I wonder what the justices would think of a school district trying to charge $5,600 for this information. Or $40,000. Or $245,000.

Those were among the actual cost estimates that Wisconsin school districts provided when my paper, the Cap Times, asked for public records about teachers accused of sexual misconduct.

Such misconduct is a more pervasive problem in schools than you might think. An estimated one in 10 students experiences sexual harassment or assault from an educator during their K-12 schooling, according to one comprehensive case study in 2004. In Wisconsin, that rate would amount to more than 93,000 school children based on last year’s private and public school statewide enrollment.

But there is no statewide comprehensive data tracking of such allegations, so the Cap Times set out to determine how often educators are investigated for sexual misconduct toward students, and how allegations to this effect are handled.

For a report to be published later this month, the Cap Times sought employee investigation records, reprimands and resignation agreements over the last eight years from districts across Wisconsin.

The responses took the newspaper by surprise. I’m not referring to the actual records — which, when the Cap Times eventually received them, were shocking in other ways. What first stunned us were the amounts the districts demanded just to look for these documents.

The Middleton-Cross Plains Area School District outside of Madison put the upfront cost of locating these records at $40,000. Sheboygan wanted $18,000, Oshkosh wanted $6,600, Appleton wanted $5,600, and Madison wanted $4,500.

Leading the pack was the Janesville School District, which asked for $245,000. The district has 9,400 students and roughly 1,500 employees, making it the ninth largest district in the state. Milwaukee Public Schools, the largest school district in the state at 66,000 students, quoted the Cap Times about $1,100 for the exact same records request. MPS also has six times more employees, meaning more records to search.

After a Cap Times reporter spoke on the phone with Janesville assistant superintendent Scott Garner, this charge disappeared. For some of the districts, the newspaper had to identify names of specific teachers and narrow the scope of its requests to get a reasonable cost estimate. For others, including Madison, we still have not received records despite our attempts to make their searches easier.

The suspicion remains that the initial price tags from some of these districts were not based on the “actual, necessary and direct cost” of locating these records, as the Open Records Law allows, but on a desire to make these requests go away.

Then there were school districts, including Racine and Waukesha, where officials said they couldn’t fulfill the request at all because it would be too burdensome.

Refusing to provide this information, or charging prohibitive fees for such records, is antithetical to school districts’ legal duty — and moral obligation — of transparency. 

Educators have unique access to children and an enormous amount of responsibility for their safety at school. By far the majority can be trusted with those responsibilities. But in some cases that trust is violated — as in the state Supreme Court’s 2007 ruling, involving an educator who was viewing adult websites on his school computer.

As the court said in its decision, “The public has an interest in knowing about such allegations of teacher misconduct and how they are handled.”

And, I would add, members of the public shouldn’t have to take out a loan to get this information.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government. Council secretary Mark Treinen (mtreinen@captimes.com) is editor of the Cap Times in Madison.

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Milwaukee Neighborhood News Service invites community members to submit opinion pieces of 500-800 words on topics of interest to central city Milwaukee. To send a submission for consideration, please email info@milwaukeenns.org. The views expressed are solely those of the authors.

As homelessness grows across Wisconsin, social service agencies are feeling a crunch. The federal government is slashing funding for tackling the problem, and state lawmakers aren’t helping much either. 

Reporters for Wisconsin Watch, the nonprofit news organization for which I work, unpacked those challenges in a mid-July story. They noted the Legislature’s budget writing committee rejected a $24 million proposal by Gov. Tony Evers to boost funding for homelessness support services and shelter operations. 

The reason? Committee leaders won’t say. 

The 2,358-word story included perspectives of multiple service providers and policy experts, but the lawmakers were conspicuously absent. My colleagues sent multiple requests for comment to four members of the committee, including its two co-chairs. One declined an interview request. The others did not reply.

The silence leaves the public guessing. 

Do the lawmakers disagree on the scope of the problem? Do they think money can be better spent on other issues? How much is just politics between a Republican-controlled committee and a Democratic governor? 

We don’t know because they won’t tell us.

It’s hard to address homelessness — or any complex challenge —  if we don’t even know where leaders stand.

Unfortunately, independent journalists are growing accustomed to being ignored. In a trend spanning multiple levels of government and political parties, public officials are increasingly avoiding answering inconvenient questions about matters of public concern. They’re sending generic statements instead of agreeing to interviews that are more likely to yield clarity. That’s if they respond at all. 

It’s happening in Wisconsin and beyond.

“Patterns of media evasion and selective engagement have become the norm for many newsmakers. They may work with media that are friendly to or aligned with the source’s views, resulting in little to no accountability questions or pushback,” states a 2024 Poynter Institute report. “Many sources who once engaged with reporters, even if grudgingly, have become masters of media avoidance.” 

Such tactics are less harmful to journalists than they are to constituents. We ask questions on behalf of the public — not to satisfy our own curiosities. Ignoring us is ignoring the public. 

In Wisconsin, the silence means less information on everything from state prison staffing shortages to the politics behind state conservation funding or dormant city initiatives in Milwaukee. 

Earlier this year, a McFarland man who arrived three years ago from Cuba attended what he thought would be the first hearing in his asylum case —  after following steps laid out by the federal government. Instead, a judge dismissed Miguel Jerez Robles’ case and agents with Immigration and Customs Enforcement arrested him.

“He had everything in order, and he was arbitrarily arrested and placed in expedited removal when he doesn’t qualify to be in expedited removal,” his attorney told the Capital Times and Wisconsin Watch. 

The news outlets reached out to ICE for comment. It did not respond. A month after his arrest, the man was released, still with no explanation. 

Thankfully, such stonewalling is not universal. Some officials still value transparency, agreeing to interviews that help the public understand their actions. It’s probably not always easy. Engaging with journalists takes time and energy, and requests may flow in with tight deadlines.

But their constituents are better off for it.

While writing this column, I emailed the four lawmakers who did not comment during Wisconsin Watch’s homelessness reporting in July: Rep. Mark Born, R-Beaver Dam; Sen. Howard Marklein, R-Spring Green; Sen. Romaine Robert Quinn, R-Birchwood; and Sen. Eric Wimberger, R-Oconto. I offered a fresh chance to discuss their vote and share their perspectives on receiving media requests. 

None of them responded. 

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Council member Jim Malewitz is managing editor of Wisconsin Watch.

The post Opinion: Your Right to Know: ‘No comment’ is no help to the public appeared first on Milwaukee Neighborhood News Service.

Milwaukee Neighborhood News Service invites community members to submit opinion pieces of 500-800 words on topics of interest to central city Milwaukee. To send a submission for consideration, please email info@milwaukeenns.org. The views expressed are solely those of the authors.

This month, for the first time in 30 years, the Wisconsin Supreme Court is without Justice Ann Walsh Bradley. It is also without one of its most consistent advocates for transparency in government. 

Bradley served three 10-year terms on the court, the last of which expired July 31. During this time, she wrote nearly 600 opinions, including quite a few that contained important interpretations of Wisconsin’s open records and meetings laws.

In a 1996 opinion, Bradley rejected the argument that open records and meetings lawsuits had to be preceded by 120 days notice. Bradley, writing for a unanimous court, said the laws require “timely access to the affairs of government.” 

In 2007, Bradley’s majority opinion in Buswell v. Tomah Area School District strengthened the public notice requirements of the state’s open meetings law. That case required meeting notices to be more specific about the subject matter of topics to be discussed, to better inform the public. 

In another majority opinion in 2008, Bradley provided some clarity as to when “quasi-governmental corporations” are subject to the open meetings law. In that case, the Beaver Dam city economic development office had closed, then was immediately replaced by a private corporation that continued to use city offices and receive tax dollars. Bradley’s opinion concluded that because the corporation still resembled the government in function, purpose and effect, it had to follow the laws.

Not every opinion written by Bradley was for the majority. In 2017, she dissented from a decision to exempt from disclosure unredacted immigration detainer forms sent by the Milwaukee County jail to U.S. Immigration and Customs Enforcement. Her opinion methodically rejected the county’s arguments in favor of redaction, arguing that “continuous ‘chipping away’ has substantially gutted Wisconsin’s commitment to open government.” 

Just one year later, Bradley dissented again, this time from an opinion that denied a public union’s request for certification forms. “The unfounded speculation that the records might be used for improper purposes,” she wrote, “does not outweigh the strong public interest in opening the records to inspection.”

Regardless of whether Bradley wrote a majority, dissenting or concurring opinion, she always emphasized the strong public policy in favor of open government set forth in Wisconsin’s open records and open meetings laws. And she condemned decisions that paid only “lip service” to these principles, calling them “all hat and no cattle.” 

Bradley even had occasion to apply open government principles to the Wisconsin Supreme Court itself. In 2012, she opposed its 4-3 decision to close some of the court’s rules and operations conferences to the public. As reported by Wisconsin Watch at the time, Bradley questioned the change, asking, “What is the good public policy reason to exclude the public from this process? I can’t think of any.” 

In 2017, Bradley was one of two justices who voted against closing all such conferences. (Fortunately, in 2023, a newly constituted court decided to reopen its conferences, with Bradley in the majority.)

Bradley told Wisconsin Lawyer magazine that she intends to stay engaged with organizations that support law and civics education. Her dedication to open government in these endeavors should serve her well, as it has the citizens of Wisconsin for three decades.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government. Christa Westerberg is the council’s vice president and a partner at the Pines Bach law firm in Madison. Heather Kuebel contributed research to this column.

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Last month, the Wisconsin town of Hazelhurst postponed discussion of a proposed ordinance due to a typo. The meeting agenda had incorrectly listed “wake board” instead of the intended “wake boat.” Said town chairman Ted Cushing, “I’m not going to violate the Open Meetings Law.”

It was the right call, one that affirms my belief that public officials in Wisconsin are, by and large, intent on complying with the state’s openness laws. But, sadly, this is not always the case.

Recent weeks have brought forth two of the most egregious violations of the public’s right to know that I have seen in more than three decades of tracking openness issues on the Wisconsin Freedom of Information Council. 

The first happened in the village of St. Francis, south of Milwaukee, on June 2. Megan Lee, a reporter for television station TMJ4, and photographer Dan Selan tried to attend a meeting of the St. Francis school board. The district superintendent, Deb Kerr, confronted Lee, in an exchange that Selan captured on video.

“You are not allowed to come to our meetings because you did not give us any notice or tell us why you were here,” declared Kerr, saying she had just spoken with the district’s lawyer. “Like you said, it’s an open board meeting, but you’re not filming.”

When Lee pressed for an explanation, Kerr replied, “I’m going to ask you to leave now, and if you don’t leave, I’ve already told you, I will call the police.” Thankfully, this did not occur. 

For the record, no one is required to give advance notice before attending a public meeting. And the state’s Open Meetings Law, at 19.90, expressly directs all public bodies to “make a reasonable effort to accommodate any person desiring to record, film or photograph the meeting,” so long as it is not disruptive.

Kerr, a one-time candidate for state school superintendent, did apologize, sort of, saying “I wish I had handled it differently.” TMJ4 has filed a verified complaint against the school district with Milwaukee County’s corporation counsel, the first step toward possible legal action.

The second transgression involves Steven H. Gibbs, a circuit court judge in Chippewa County. Gibbs recently issued an order that not only barred the media from recording witness testimony at pretrial evidentiary hearings but also instructed that they “may not directly quote the testimony of the witnesses, and may only summarize the content of the testimony,” or else face contempt proceedings.

“Wow, this is quite the court order,” said Robert Drechsel, a UW-Madison professor emeritus of journalism and mass communication and expert on media law and the First Amendment, when I asked for his thoughts. He cited a 1976 U.S. Supreme Court decision, Nebraska Press Association v. Stuart, which limited judges’ ability to impose constraints on media, requiring that they consider less restrictive alternatives and ponder whether the order would be effective.

That was not done here. And, in fact, requiring summation over quotation “would be more likely to introduce a risk of error and possible prejudice,” Drechsel said. “So no, I do not think the judge can prohibit the media from directly quoting what they hear during an open court proceeding. And I don’t think it’s a close call.”

Judge Gibbs, asked under what authority he was forbidding direct quotation, cited a Wisconsin Supreme Court rule that allows judges to “control the conduct of proceedings” before them. Gibbs said he believes in the First Amendment and freedom of the press but “my concern is a fair jury pool in this matter not tainted by any media reports” about evidence that may or may not be introduced. He did not explain how threatening the media for trying to be as accurate as possible would achieve this end. (Here are links to Gibbs’ and Drechsel’s full responses.)

The truth is that public officials, even if they’re well intentioned, sometimes broadly overstep. Let’s just be grateful that this is the exception and not the rule. You can quote me on that.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Bill Lueders is the group’s president.

The post Your Right to Know: When transparency is disregarded appeared first on Milwaukee Neighborhood News Service.

Milwaukee Neighborhood News Service invites community members to submit opinion pieces of 500-800 words on topics of interest to central city Milwaukee. To send a submission for consideration, please email info@milwaukeenns.org. The views expressed are solely those of the authors.

Probably the most commonly used — and, in my opinion, abused — exemption in our state’s Open Meetings Law is the one that lets governmental bodies meet behind closed doors “whenever competitive or bargaining reasons require a closed session.”

The exemption, 19.85(1)(e) in Wisconsin state statutes, is used by all manner of public bodies, from city councils to school boards. It is supposed to be used sparingly, when needed to protect ongoing negotiations. But many bodies use this exemption to conceal everything about a potential deal or development, keeping the public in the dark until it is too late for their input.

Thankfully, the Wisconsin Court of Appeals issued a recent opinion, in a case known as Oitzinger v. City of Marinette, that should significantly curtail such abuses. The court ruled that the city’s attempts to use this exemption on two occasions violated the law. 

The first involved an agreement (negotiated for months behind the scenes and presented to the common council for the first and only time in that closed session) that released a PFAS polluter from liability in exchange for a “donation” toward equipment to help address the pollution it caused. The second involved an engineering analysis of methods to provide safe drinking water for people whose well water had been contaminated.

Both closed sessions were illegal, the appeals court ruled, because neither included discussions of negotiation strategies that needed to be kept secret. The court’s ruling does three very important things.

First, the court held Marinette officials accountable for their illegal behavior. The plaintiff, Douglas Oitzinger, was a city council member who thought his colleagues had abused this exemption. He was willing to stand up to his colleagues, endure their scorn and not give up until he won. (His efforts earned him an award from the Wisconsin Freedom of Information Council in 2022.)

Second, the case reaffirms an important principle: The law’s exemption protects bargaining tactics, not all discussions about a possible deal. It exists so that government boards don’t have to negotiate at a disadvantage by divulging their strategies, such as the most it is willing to pay to buy a piece of land. But those kinds of discussions are the only thing that is supposed to happen in closed session. Other discussions — particularly debates about the merits of a course of action — need to be held publicly.

Third, the court emphasized that a board’s members need to cast an informed vote to go into closed session. That means it needs to be explained to them — on the record in open session — what kind of information is going to be discussed and why secrecy is necessary. Too often the process for going into a closed session is just a formulaic reading of a vague agenda item and a vote with no explanation or discussion. The court of appeals concluded that more is necessary, not just in this case but whenever this exemption is invoked.

I believe this is the part of the court’s decision that has the most impact. Government board members usually do this work on a part-time basis for little or no pay. They’re frequently happy to follow the lead of full-time government administrators or experienced board members. Administrators or presiding officers now must take the time to explain why they want to go into closed session. That will not only provide more information to the public, it will help board members think about and answer the question of whether secrecy is really necessary.

As an advocate for government openness, my hopes are high. I’ve seen reports from around the state that government attorneys are advising their clients about this case and explaining these requirements. I’m hopeful that abuse of this exemption will significantly decline.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Tom Kamenick, a council member, is the president and founder of the Wisconsin Transparency Project.

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