Wisconsin public-records confusion continues

By The Associated Press

03.19.02

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MADISON, Wis. — Lawmakers adjourned last week without resolving widespread confusion over how public records are released to the public and when people should be notified that records naming them are released.

Bills that failed to pass either house of the Legislature before the end of lawmakers' regular two-year meeting period have to be reintroduced during the next session in January and start the process again. That means continued confusion about access to public documents, state officials say.

"You have people who keep records and they're all playing by various rules and procedures and tests to determine whether they can release records," said Sen. Jon Erpenbach, D-Middleton, chairman of the Senate's privacy committee.

Two separate bills to clarify the state's Open Records Law were approved by the Assembly and Senate privacy committees, but neither bill made it to the floor of either house. Lawmakers are still meeting in special session to pass budget changes, but they cannot take up other legislation at the same time.

The Senate could put its version of the open records changes into its budget bill, but the likelihood of that prospect was unclear.

Senate Democrats said they would try to include a clarification of the law in the budget bill. The records clarification is too important to wait, said Sen. Brian Burke, D-Milwaukee and co-chairman of the Legislature's Joint Finance Committee.

"I don't see this as controversial, and I don't think, by and large, it can wait for another year, since the earliest the Legislature could get to it next is June 2003," he said.

Any proposal must pass both houses and be signed by Gov. Scott McCallum before it can become law.

The Open Records Law, passed in 1981, presumes all government records are public, with some exceptions, and details procedures for their release. However, a series of court cases has created ambiguity when it comes to the release of public records.

In Woznicki vs. Erickson, the state Supreme Court ruled in 1996 that people have a right to be notified before certain documents naming them are released. But the court did not specify which documents, and several rulings have broadened that decision's impact by giving records keepers even greater discretion.

They first must decide whether the public's interest in releasing documents outweighs any concerns about privacy or reputation. They also must decide if people mentioned in the documents should be notified first.

The situation has caused confusion among records keepers and frustrated news outlets trying to get access to records ranging from disciplinary reports to housing inspections.

"You are sometimes worried that you'll be sued if you don't disclose the record, and you're equally … worried you'll be sued if you do disclose the record," Green Bay City Attorney Tim Kelley said.

Last month, an appeals court ordered the Rhinelander School District to release the 1999-2000 performance evaluation of a school superintendent who was placed on paid administrative leave for two years, while someone else was hired to do the job.

The superintendent, Robb W. Jensen, sued to prevent the evaluation from being released to The Rhinelander Daily News, and the case took a year to move through the court system.

"By then, the story's a little cold," Kelley said. "I know it frustrates the media."

Sandra George, executive director of the Wisconsin Newspaper Association, said journalists simply wanted access to documents that have long been considered open to public scrutiny in Wisconsin.

"We're still having to sue to get basic records," she said. "I would think the public would be up in arms about why people who are getting fired are still getting paid."

Both the Senate and Assembly bills would allow state employees' names and salaries to be released without notification. They would allow records keepers to withhold employees' addresses and phone numbers and information about pending investigations.

They also would provide guidance for weighing whether investigation records should be made public once the probe is completed and a timeline for employees to challenge the release.

The provisions would not apply to elected or appointed officials, such as police chiefs or mayors.

The major difference between the Assembly and Senate bills is that the Senate bill would apply to the names and wages of workers who are under contract with the state through a private company, such as construction workers. The Assembly bill would keep those records private.

Erpenbach said he was "pretty adamant" that those records be open to the public if state taxpayers are paying their salaries.

Assembly Personal Privacy Committee chairman Mike Powers, R-Albany, said that would overturn a 1999 appeals court ruling that said the public interest in protecting the privacy of employees who work for a private company outweighed the public interest in disclosing their names.

"Just because someone can collect it, doesn't mean that the public has the right to access to that information," he said.

Related

Wisconsin high court boosts public access to certain records
Rulings in two cases could help clarify state's records law, which was opened to new interpretations in wake of several state court decisions.  07.04.02

Journalists don't have to answer questions in open-records case
Wisconsin judge says reporters still have privilege even though their newspapers are plaintiffs in lawsuit.  02.19.02