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November 23, 2017

11/2/2017 7:29:00 AM
An old GOP learns new tricks to close state government

You can always count on Republicans to promote efficiency.

For instance, take the old saying, "one step forward and two steps back." Well, when it comes to open government in Wisconsin, the Republicans decided that such a fitful march to the rear was too inefficient.

So in the last seven years they have eliminated the middle man - the one step forward - and have just moved steadily backward.

Everyone most vividly remembers the GOP's attempted Great Leap Backward when they tried but thankfully failed to repeal the entire open records law in one fell swoop.

When that didn't work, they decided to play small ball to kill open government a little at a time - death by a thousand cuts - an avenue of openness closed here, a swath of information hidden there, little acts they hoped the people wouldn't notice.

More recently they mounted an assault on requirements to publish many public notices in newspapers. At a time when the public is accessing newspaper websites more than ever and overall reaching more readers than ever before, lawmakers wanted to dam that flow of information.

Republicans also continued to complain about public access to online circuit court records, and they have pledged to come back with another bill to shut CCAP down. And, of course, there's the ultimate indicator - the Legislature refuses to put its members under the open-records retention law, which would require them to keep records for specified time periods.

Without that requirement - which governs virtually all other public officials in the state - the public is denied true access to important documents. In other words, all these lawmakers who say they cherish openness have already effectively exempted themselves from the open-records law, and are quite content to let the exemption remain in place.

A lot of that is old news, of course, but don't think the Republicans aren't constantly dreaming up new ways to close the doors of government. Take, for example, an egregious bill on law enforcement body cameras that is making its way steadily through the Legislature.

While the release of body camera footage by law enforcement is already subject to the open-records law's balancing test, starting with a presumption that the records are open, this law's starting point is a presumption that the records are sealed and can be released and retained only under certain circumstances.

As one might guess, those certain conditions heavily favor law enforcement and not private citizens.

There are three major flaws in this restrictive legislation.

First, only video related to deaths, alleged or actual injuries, custodial arrests, and searches during authorized temporary questioning are eligible for release. But what about police encounters that occur when these elements are not present?

There are many such instances. There are police encounters on the street and in traffic stops that may not result in arrest or injury but may well include inappropriate police behavior - harassment, threats, an illegal search, racial animus and profiling, and other improper uses of authority.

Under this law, none of that footage would be subject to release. Indeed, the law might well encourage a more aggressive display of unjustifiable police power, since recorded police actions can be sealed to protect the cops in question.

The second flaw requires that police obtain permission from victims and witnesses to release footage recorded in a place where privacy is reasonably expected, such as inside a home. The catch here is, every person who is a known victim or witness or property owner must consent for footage to be released.

If one person says no or doesn't respond, the footage is sealed.

Law enforcement argues that this helps to protect the identity of victims, especially victims of domestic abuse and sexual assault, but this argument is a red herring. Audio video redaction, as well as pixillation, can already protect victims' identities.

The goal instead seems to be to make it as difficult as possible for the public to see what the police are doing inside private homes. This is unprecedented and unconscionable.

Finally, the bill allows the destruction of most footage after only 120 days. Most state agencies and units of governments must keep public records seven years. Four months seems to be an awfully quick trigger.

Footage related to deaths, alleged or actual injuries, custodial arrests and searches must be kept until those cases are completed, but in general preserving footage longer than that, or 120 days in general, is the prerogative of the police, not the public.

The police can preserve data that they think have evidentiary value in a future prosecution, for instance, but the public's right to preserve footage is nonexistent unless a formal criminal, civil, or administrative hearing process is already underway at that 120-day or case-closure marker. That's problematic because civil cases are sometimes launched well after criminal or administrative processes have ended; and sometimes it takes months for people to decide to make a complaint about inappropriate police behavior that was recorded but did not result in injury or arrest.

Practically speaking, the balancing test of the open-records law would be replaced by a balancing test in which the fat thumbs of law enforcement are tilting the scales.

Once again, the current open-records law's balancing test already adequately protects the rights of victims and the safety of witnesses, and its presumption of openness preserves a record trail of true accountability. Whether the footage substantiates a police account of events, a victim's account of events, or a suspect's account of events, that trail helps lead to justice.

We should not let the GOP and its law enforcement allies block that trail with the detritus of obstruction.

Everyone would do well to remember that our constitutional rights of privacy were designed to protect the privacy of average citizens, not government officials, and especially to protect our privacy from an intrusive and belligerent government.

When government officials themselves start talking about the need to protect privacy, what they are usually talking about is their need for secrecy.

Except in exceptional circumstances, there should be no reason for such secrecy, but that's what this bill is all about - enhancing the already furtive nature of law enforcement. The bill does nothing to strengthen constitutional privacy rights but rather works against the constitutional mission of restricting the power of government.

It should be defeated, and any lawmaker who votes for it should be held accountable.

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