Resistance to open government can run deep in both major political parties - both are committed to transparency except when they aren't - and the latest brawl is over on the Democratic side, with Gov. Tony Evers' office denying routine requests for the governor's emails.
The conflict started back in September, when television station FOX6 in Milwaukee requested about a month's worth of emails to and from Evers and to and from his chief of staff, Maggie Gau. As FOX6 reported, on Sept. 27, assistant legal counsel Erin Deeley denied the request.
Specifically, the station requested Evers' emails that were sent and received from June 14 through June 30 and from Sept. 2 through Sept. 18, and it requested Gau's emails from June 4 through June 30 and from Sept. 2 through Sept. 18.
The reason for the denial? Deeley said the requests were insufficiently specific because they lacked a subject matter.
"The public records law provides that a requester may deny a record request that lacks 'reasonable limitation as to subject matter or length of time,'" Deeley wrote, citing the open records statute.
Deeley emphasized that she followed up by phone to request a subject matter.
"You declined to give a subject matter," Deeley wrote to investigative reporter Amanda St. Hilaire. "Instead, you offered to make multiple requests for smaller periods that would culminate to cover the same period described above. As I explained on the phone, this does not alleviate the problem or make your request sufficiently specific."
Though Deeley said it wasn't determinative in the decision to deny the requests, she said the requests generated an estimated 10,975 items when she reviewed the identified users' email records.
"As I explained on the phone, we cannot provide you approximately 10,975 items without individualized review," she wrote. "This review would require an employee to devote weeks of time working on your request alone, ignoring their other job responsibilities and all the other requests our office receives. And while you could not be charged for the time it would take to conduct that review, Wisconsin taxpayers should not be asked to pay the salary of a state employee to work exclusively on an insufficiently specific request for weeks, to the detriment of all other requests, requesters, and job responsibilities."
Deeley also defended Evers' open government track record.
"During the first six months of Gov. Evers's administration, our office responded to 149 public record requests with an average response time of 22.78 calendar days," she wrote. "In 2018, Gov. Walker's average reporting time, per their own tracking records, was 26.5 business days, meaning they did not include weekends or holidays in their calculation."
Walker's office completed 170 requests in all of 2018, while Evers's office has already logged 226 requests since inauguration. Deeley also said the amount of requests the governor's office receives means the law needs to be strictly followed.
"However, given the volume of requests our office receives, in order to be fair and responsive to all requesters and fair to the Wisconsin taxpayers paying for the staff needed to fill record requests, it is important we apply the law as written and uniformly to all requesters," she wrote.
Third time's not the charm
After that denial, the station reduced the request to one week's emails, but that merely brought another denial, the station reported, and for the same reason: the lack of a subject matter.
So St. Hilaire tried again for a third time, this time requesting one day's emails, and again the request was denied.
"For the same reasons articulated in my September 27, 2019, denial, and reiterated in my October 3, 2019, denial, this request is denied because it lacks a subject matter," Deeley wrote.
An open records request may be denied if it does not include a reasonably specific subject matter and a reasonably specific time frame, Deeley argued, and she cited the attorney general's open records compliance guide to back up her assertion.
"Per Wisconsin Department of Justice guidance, '(a) request must be reasonably specific as to the subject matter and length of time involved,'" she wrote. "While you have provided a time frame, you have not provided a subject matter, only a medium/format."
What's more, Deeley continued, the station had already offered to make individual, multiple single-day requests that would culminate to cover the same larger period referenced in the original request.
"This does not make your request sufficiently specific under (the law)," she wrote. "The law requires a requester to provide a subject matter."
Deeley also clarified she had not denied the earlier requests simply because they had the potential to produce many documents.
"A request, if properly made with the requisite specificity, may very well generate a large number of records," she wrote. "The prior request referenced above required review of over 3,000 pages of responsive records prior to release."
But with the volume of requests the governor's office receives and the amount of records maintained - the office had received another 49 requests for records since the station made the initial request a month earlier, Deeley wrote - the governor's attorney said it was imperative that the law be applied as written, and applied uniformly to media and citizens alike.
"Wisconsin taxpayers should not be asked to pay the salary of a state employee to work exclusively on an insufficiently specific request for weeks, to the detriment of all other requests, requesters, and job responsibilities, when that requester need only provide a subject matter, as the law requires," Deeley concluded.
And the law says ...
But open records lawyers such as April Barker, who has handled and won multiple open records cases both for The Times and others, and open-records advocates such as Bill Lueders, the president of the Freedom of Information Council, said Deeley's reading of the law is mistaken.
"It's part of a concerted effort, unfortunately, to come up with ways to limit public access," Barker told FOX6.
In an email to state media and others, Lueders said that, while Evers's office was arguing that email requests for an entire month or even a single day are not reasonably specific, legislators routinely respond to similar requests by providing records.
Deeley's interpretation of the law is that a reasonable open-records request must include both a specified subject matter and a timeframe, and she cited the attorney general's compliance manual to make her case: "The request must be reasonably specific as to the subject matter and (emphasis added) length of time involved."
But, as FOX6 reporter Amanda St. Hilaire pointed out in one of her requests to Deeley, that's not what the law says.
"The next sentence in the statute says a request is insufficient if it does not have 'a reasonable limitation as to subject matter or length of time,'" St. Hilaire wrote. "This part of the statute does not require a subject matter; it gives the choice of subject matter or time. In this case, I gave a very specific and short period of time. Although the statute does not require me to provide a subject matter, I would argue the emails themselves are subject matter in the same way expense reports themselves are subject matter."
St. Hilaire has also pointed out that the assertion in the DOJ compliance guide referenced by the governor's office cites a 1997 case in which a requester asked for three hours of tape on each of a sheriff's department's 60 911 channels, which constituted 180 hours of audiotape. The requester also requested a transcript to be prepared for each of the tapes and a log identifying the time of each transmission, according to the court's decision.
The judges agreed that requiring a records custodian to engage in copying 180 hours of tape and the creation of a log to identify the time and the order in which the transmissions were received represented an unreasonable burden.
A close reading of the case, however, shows the judges never concluded there must be both a specific subject matter and a reasonable timeframe, only that the overall request was unreasonably burdensome. In fact, the judges observed the sheriff's office had asked for one or the other, but was turned down.
"A letter requesting Schopper narrow his request suggested that he identify specific times of the transmissions he was seeking or that he identify a specific incident to which the transmissions would relate," the judges wrote.
In other words, the judges upheld the request's denial not because a subject matter was not included. but because the requester refused to provide either a specific incident or a less burdensome timeframe. The judges quote of the sheriff's offer suggests that either a specific time frame or a specific subject matter/incident would have worked, not a subject matter and timeframe, as the compliance manual wrote.
"Here, Schopper's request was far in excess of that which was necessary for his announced purpose," the judges wrote. "Because he could reasonably have limited his request but failed to do so, and because the request placed an unreasonable burden upon the custodian in preparation of the documents necessary to fulfill the request, we conclude that the court did not err by finding the request to be so over broad as to be inadequate under the open records law."
It could be argued that the FOX6 case is analogous, that if the four-weeks time frame was overly burdensome - and that's "if" - narrowing the request to a week or a day should surely have fixed the shortcomings.
What's more, as St. Hilaire also points out, the language of the law does not state it must be reasonably limited by "subject matter and (emphasis added) length of time involved," as the compliance guide puts it incorrectly but by "subject matter or length of time."
The open records flap is not the only open government controversy the Evers administration is involved in.
In October, the conservative Wisconsin Institute for Law & Liberty (WILL) called out the governor for a lack of transparency a month after Evers pledged to "better present accurate information about public records to the public."
"Evers's promise came in response to a WILL report, released in September, that revealed the administration deliberately shuttered an open government website and has failed to re-issue Walker-era executive orders that instituted best practices for government transparency," WILL stated.
WILL executive vice president CJ Szafir said the Evers' administration pledged do things better than the Walker administration when it came to government transparency.
"A month later, there is no plan, there is no visible progress, and the public remains in the dark," Szafir said. "We're calling on Gov. Evers to keep his promise to open up state government and follow Walker's best practices."
Szafir said WILL submitted identical open records requests to 11 offices and state agencies for tracking documents and records practices, and, by the end of August, WILL had received responses on nine of the 11 requests and reviewed over 4,000 records.
The group found Walker's open-government website was no longer active and the public could no longer determine how the Evers administration was practicing government transparency. WILL also concluded the system to track records requests in Evers's office was disorganized and dysfunctional, as was Lt. Gov. Mandela Barnes's office.
"Despite only 13 requests, Lt. Governor Mandela Barnes's office took, on average, 22 business days to respond to open records requests," WILL stated.
WILL called on Evers to quickly reissue the Walker-era executive orders that defined the best practices for open government and revitalize the open government dashboard website.
"If the Evers administration does not act, the state Legislature should consider oversight hearings to determine why the Evers administration is taking Wisconsin backwards on transparency," the group urged. "The state Legislature should require all government offices and agencies to comply with open records laws and create clear and up-to-date tracking systems."
WILL also called upon the Legislature to ensure full transparency by instituting low records request fee policies to ensure that all citizens have access to the inner workings of government.
In August, the conservative MacIver Institute sued Evers for excluding its journalists from press briefings and refusing to provide them with press material that is shared with other news outlets.
According to MacIver, since Evers took office in January, his administration refused to include MacIver News Service reporters on invitations to press events. The Evers administration also blocked MacIver journalists from participating in a budget press briefing that was open to other journalists, the news outlet reported.
The case, MacIver Institute v. Evers, was filed in the U.S. District Court for the Western District of Wisconsin.
"Gov. Evers should not block MacIver journalists from public press briefings and limit their access to government activities," Brett Healy, president of the MacIver Institute, said. "Our reporters have the same constitutional rights as every other journalist in Wisconsin, and we have a duty to keep the public informed about what's happening in state government."
Healy said MacIver had hoped Evers would do the right thing and treat its journalists the way they treat others, but the administration refused.
"We now have no option but to sue," he said. "A free and vibrant press is critical to democracy, and to ensuring the people of Wisconsin are informed and engaged on what's happening in their state. We hope to quickly resolve this issue, not just so that our journalists can go about their important work but to ensure no future governor engages in the same unconstitutional practices."
Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.
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