Wisconsin Open Records Complaints are Few – When They’re Tracked

The Open Records Law in Wisconsin was at the center of a big controversy when members of the State Legislature announced and then withdrew plans to modify the law. However, a three-month Media Milwaukee investigation found that there were relatively few Open Records Law and Open Meetings Law complaints filed with District Attorneys and Corporation Counsels across the 72 counties in Wisconsin within the last three years.

At least that’s true for those who have the information. Some of these enforcers of these two laws don’t even keep track of the numbers of complaints they receive – and that includes the Wisconsin Department of Justice, the top law enforcement agency in the state.

Other offices – District Attorneys whose job it is to enforce open records laws – did not respond to open records requests for the data at all. That was 16 of them.

Usually District Attorneys, Corporation Counsels and the Attorney General are places where people can file complaints of alleged violations of the Open Records Law or the Open Meetings Law. Some of the complaints they receive are serious such as a complaint filed in Dane County regarding the Public Records Board and its definition of transitory records, for example, text messages.

On the other hand, the investigation revealed there are some that are more colorful such as a complaint in Adams County in 2014 that had to do with records surrounding monkeys in the county, according to records from Adams County District Attorney, Tania Bonnett.

 

 

 

 

 

Media Milwaukee filed requests in all 72 counties for the number of complaints in the last three years concerning an alleged violation of the Open Records Law or the Open Meetings Law. In our investigation only 16 counties did not respond to our open records request for complaint data.

Media Milwaukee also found that one D.A. initially denied the request for complaint data citing the 1991 Richards vs. Foust court case, which according to the Wisconsin Freedom of Information Council President Bill Lueders and the Department of Justice’s Open Records Compliance Guide, exempted prosecutorial files from the Open Records Law.

Basically, the D.A. did not consider the statistics an open record, yet most other D.A.’s and Corporation Counsels responded with data if it was available.

“[It’s] Unfortunate, they obviously don’t have a lot of sense that they need to be accountable to the public,” said Lueders about the 16 non-responders. “They think that they don’t have to respond to legitimate requests.”

Media Milwaukee’s investigation began by reaching out to district attorneys and corporation counsels via email, fax and U.S. Mail for the aggregate number of Open Records Law and Open Meetings Law complaints that these offices received this year to date, in 2014 and in 2013. All together Media Milwaukee found an estimated 102 total complaints within that time period. However, the actual total is impossible to narrow down due to some offices providing us with estimated figures or ranges.

Other investigation results:

• 58 counties responded to our open records requests, an 81% response rate. Of those 58 counties:
• 46 provided some sort of data, whether it was statistics broken down by the last three years, or an estimate of how many they receive a year.
• Two counties responded to our request (Fond du Lac and Wood) by letting Media Milwaukee know of the status of our request and did not include data.
• 14 counties did not respond to our requests.
• Dane County had the most with 15 total complaints – the actual total of complaints varied because, according to Michelle Marchek with the Dane County District Attorney’s Office, the number of Open Records Law complaints sent to Media Milwaukee was a combination of complaints and open records requests. Marchek also said that the number of complaints could not be separated from the requests.

The Fond du Lac County District Attorney’s Office responded to our request, but did not include data or a notification that the office does not keep track of that data. Instead D.A. Eric Toney said in an email dated Dec. 1, 2015, that he would work on the information, “But my initial thought is that I have not received any referrals contained within your request.”

The Wood County District Attorney Craig Lambert responded to Media Milwaukee’s faxed request on Dec. 23, 2015 by phone and received on a later date because he was on military leave.

The Eau Claire County District Attorney’s office is a similar example to the Fond du Lac County example in that they responded to open records request but there was a catch. The student journalist reached out to the D.A.’s office and was connected with a data analyst in the office named Sean Callister. Media Milwaukee emailed Callister the open records request for complaint data on Nov. 2, 2015.

After exchanging emails about the details of our request, Media Milwaukee received an email from Callister saying that he wasn’t sure where the records were stored. But upon searching a computer program called, PROTECT, turned up no complaints.

Attorney General’s office

According to Assistant Attorney General Paul Ferguson with the newly created Office of Open Government within the Dept. of Justice, the D.O.J does not keep track of the number of complaints, but they keep track of correspondents such as emails, letters and phone calls.

“As part of the Office of Open Government, we are always looking to improve our processes,” Ferguson said. “One of our goals is to try and help resolve disputes or issue.”

Ferguson says that the Office of Open Government has a Public Records Open Meetings (PROM) Hotline set up for people to call and ask questions. He also said that they have received 375 calls from Jan. 1-Nov. 30, 2015, which this figure also includes questions the DOJ receives through email or other DOJ phone numbers.

Wisconsin Attorney General Brad Schimel made it clear both publically and at the Open Government Summit held back last July, that he is very pro-open records law. In fact the DOJ has received over 701 open records requests from Jan. 1-Nov. 30, 2015, according to Ferguson. This number is representative of people attempting to seek D.O.J. data.

Records can sometimes be hard to get.

Media Milwaukee received a response to it’s open records request from Kewaunee County District Attorney Andrew Naze on Oct. 26, 2015 initially denying the request for complaint data citing the 1991 court case of Richards vs. Faust (State ex rel. Richards v. Foust, 165  Wis. 2d 429, 477 N. W. 2d 608 (1991)).

According to Lueders, the Richards v. Foust says that the district attorney’s prosecution files are exempt from the Open Records Law. It is also outlined in the Open Records Compliance Guide from the Wisconsin Department of Justice that District Attorney Prosecution files are exempt from release due to the Richard vs. Foust case due to, “’[C]ommon law limitation does exist against access to prosecutor’s files under the public records law.”

Media Milwaukee wrote back to D.A. Naze, on Oct. 28, 2015 to contest our denial on the open records request by letting him know that he was the only office in the state that denied a request, and we clarified that the news site was complaint numbers and not actual details of cases. The news site received a response from D.A. Naze the next day and complied with our investigation.

Another example is getting data from the Oneida County District Attorney’s Office, where the office had the news site send them a request via U.S. Mail instead of fax or email. The person we spoke with from the office said that she wasn’t sure if the fax number works as a way for open records requests. Media Milwaukee mailed them a request back on Nov. 25, 2015 and we did not hear from them since then.

Things got weird in the response letter we got from the Rock County District Attorney’s Office. District Attorney David J. O’Leary stated at the top, “Stevan Stojanovic MediaMilwaukee.com/Student Reporter UW Milwaukee Dept. of Journalism.” However the greeting of the letter read, “Dear Mr. Krellenstein.”