Wisconsin candidates differ on open records

By The Associated Press

11.02.02

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The candidates for Wisconsin's attorney general agree recent court decisions have weakened the state's open-records law, once considered one of the country's most progressive. But they disagree on how exactly to remedy the situation, which has left people confused about what public documents can be released.

Democrat Peg Lautenschlager, a former U.S. attorney, faces Republican Vince Biskupic, Outagamie County's district attorney, in the Nov. 5 election for the top law enforcement job in Wisconsin.

Wisconsin's 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 decisions has created ambiguity when it comes to releasing 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, leaving it to record-keepers to decide. Subsequent rulings have broadened that decision's impact by giving record-keepers even greater discretion.

Lautenschlager said passing a law repealing what the Supreme Court did might be best. Biskupic said lawmakers should clarify the ruling, not repeal it altogether.

The attorney general plays a vital role in interpreting open-records and -meetings laws, setting the tone for how they are enforced, said Robert Dreps, a Madison attorney who represents the news media in fights over public records.

"It is the only area of the law I know of where any citizen can ask the attorney general for advice and interpretation," Dreps said.

A legislative committee of lawmakers, attorneys, public officials and media representatives is trying to draft legislation to clear up confusion the decisions caused.

Woznicki vs. Erickson has significantly limited what was a good and broad open-records law, and there needs to be a legislative fix, Lautenschlager said.

Notifying people someone wants to examine their records is important, she said, but it's cumbersome and creates an excuse for public officials not to turn over documents.

Under her administration, Lautenschlager would vigorously overturn decisions by government officials who deny the public access to records they are entitled to see, she said.

Biskupic said the Supreme Court's decision left a variety of interpretations, causing too much confusion for record-keepers.

State legislators should pass a law that establishes specific standards record-keepers can use to decide whether the public's right to know is more important than the privacy interests of the person in the record, he said.

For example, an individual's personal safety should be a standard, Biskupic said.

A new law effective Jan. 1 says the cause of death on a death certificate is confidential and cannot be released to the public. The change addresses complaints that the information is part of a person's private medical history and should only be available to those with a direct and tangible interest in it, said John Chapin, state Bureau of Health Information interim director.

Lautenschlager said such information as cause of death should be available to the public. In certain cases, the public's understanding of a cause of death is a check against prosecutors' abusing their discretion in how cases are handled, she said.

For example, if two or three babies died of sudden infant-death syndrome in the care of a particular person, then knowing the cause of death might tip off authorities to a pattern of something unusual, she said.

Biskupic said the Legislature already made the change so "we have to enforce it the way it is. If they want to change it, we'll leave it up to them."

As the campaign wound down, Biskupic found himself in an open-records fight as a defendant in court.

A judge yesterday ordered Biskupic to turn over records related to a crime-prevention fund in his office to the state Democratic Party. The party filed a lawsuit seeking the records after Biskupic denied the party's request, ruling the records the party sought included prosecution files that were "clearly exempt" from the open-records law.

Biskupic called the party's lawsuit a "late-in-the-game political maneuver."

Biskupic released the records later yesterday showing money his office raised each year since 1994 for community crime-prevention efforts. Never more than $8,000, the fund pays mostly for a contest in which children design pictures for a say-no-to-crime-type calendar.

Established mostly through corporate donations, the fund is supplemented with payments by offenders as part of negotiated agreements to defer or dismiss prosecution.

Kevin Doyle, former editor and associate publisher of The Post-Crescent in Appleton and current publisher of the Oshkosh Northwestern, gave Biskupic high marks for openness. "I can't recall one incident that he wasn't cooperative," Doyle said.

Dave Zweifel, editor of The Capital Times in Madison, where Lautenschlager was a federal prosecutor, said he recalled no serious problems regarding public records. "I can't remember any kind of contentiousness," he said.

Biskupic and Lautenschlager also said they would continue programs to educate public officials on the open records law and the importance of openness in government.

"For those who are charged with a public trust, allowing the public to scrutinize decisions being made is imperative to a democracy," Lautenschlager said.