Probably the most commonly used — and, in my opinion, abused — exemption in our state’s Open Meetings Law is the one that lets governmental bodies meet behind closed doors “whenever competitive or bargaining reasons require a closed session.”

The exemption, 19.85(1)(e) in Wisconsin state statutes, is used by all manner of public bodies, from city councils to school boards. It is supposed to be used sparingly, when needed to protect ongoing negotiations. But many bodies use this exemption to conceal everything about a potential deal or development, keeping the public in the dark until it is too late for their input.

Thankfully, the Wisconsin Court of Appeals issued a recent opinion, in a case known as Oitzinger v. City of Marinette, that should significantly curtail such abuses. The court ruled that the city’s attempts to use this exemption on two occasions violated the law. 

The first involved an agreement (negotiated for months behind the scenes and presented to the common council for the first and only time in that closed session) that released a PFAS polluter from liability in exchange for a “donation” toward equipment to help address the pollution it caused. The second involved an engineering analysis of methods to provide safe drinking water for people whose well water had been contaminated.

Both closed sessions were illegal, the appeals court ruled, because neither included discussions of negotiation strategies that needed to be kept secret. The court’s ruling does three very important things.

First, the court held Marinette officials accountable for their illegal behavior. The plaintiff, Douglas Oitzinger, was a city council member who thought his colleagues had abused this exemption. He was willing to stand up to his colleagues, endure their scorn and not give up until he won. (His efforts earned him an award from the Wisconsin Freedom of Information Council in 2022.)

Second, the case reaffirms an important principle: The law’s exemption protects bargaining tactics, not all discussions about a possible deal. It exists so that government boards don’t have to negotiate at a disadvantage by divulging their strategies, such as the most it is willing to pay to buy a piece of land. But those kinds of discussions are the only thing that is supposed to happen in closed session. Other discussions — particularly debates about the merits of a course of action — need to be held publicly.

Third, the court emphasized that a board’s members need to cast an informed vote to go into closed session. That means it needs to be explained to them — on the record in open session — what kind of information is going to be discussed and why secrecy is necessary. Too often the process for going into a closed session is just a formulaic reading of a vague agenda item and a vote with no explanation or discussion. The court of appeals concluded that more is necessary, not just in this case but whenever this exemption is invoked.

I believe this is the part of the court’s decision that has the most impact. Government board members usually do this work on a part-time basis for little or no pay. They’re frequently happy to follow the lead of full-time government administrators or experienced board members. Administrators or presiding officers now must take the time to explain why they want to go into closed session. That will not only provide more information to the public, it will help board members think about and answer the question of whether secrecy is really necessary.

As an advocate for government openness, my hopes are high. I’ve seen reports from around the state that government attorneys are advising their clients about this case and explaining these requirements. I’m hopeful that abuse of this exemption will significantly decline.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Tom Kamenick, a council member, is the president and founder of the Wisconsin Transparency Project.

Your Right to Know: Want a closed session? Explain yourself! is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

In any community, the role of the medical examiner is vital. 

Medical examiners — or coroners, in the nearly half of Wisconsin’s 72 counties that have them as an alternative — determine the cause and manner of death, support the criminal justice system and track data to identify trends that can impact public health and safety.

For me and other Milwaukee-area journalists, the insights provided by the Milwaukee County Medical Examiner’s Office are integral to our coverage, providing crucial details and important context. Among the recent examples where the level of openness has played a key role are the COVID-19 pandemic, the tragic deaths of three men due to extreme cold last January and the high-profile case of D’Vontaye Mitchell last June.

Traditionally, the office has supplied “demographic reports” as well as “narrative reports.” Demographic reports include information such as the name of the deceased, where the death occurred, and the name of a family member who was notified. Narrative reports, in contrast, delve into the circumstances surrounding each case. 

“Narrative reports are particularly illustrative when compared to other available public information,” wrote David Clarey in the Milwaukee Journal Sentinel in March. “Contextual information, such as whether a driver ran a red light or if a homicide resulted from a heated argument, is often missing (from demographic reports) and requires time-consuming requests from media and families alike.”

The media in Milwaukee were pleased with the level of openness we experienced from Karen Domagalski, the longtime operations manager for the Milwaukee County Medical Examiner’s Office. But when Domagalski retired on Feb. 19, the county’s medical examiner, Dr. Wieslawa Tlomak, announced a change in policy. Henceforth, she said, the office would stop sharing narrative reports until investigations were concluded and cases closed. She acknowledged that this shift represented a significant change in past practices.

Concerned by the change in policy, several news executives, including me, sent Tlomak a letter on April 4. It read, in part:

“The decision to curtail access to these preliminary findings poses a troubling scenario for our news organizations and, more importantly, for the residents of Milwaukee County. Withholding this essential information may leave the public waiting weeks, months, or even longer for basic insights into the circumstances surrounding the deaths of community members. This delay not only hampers our ability to keep the public informed but also undermines trust in the transparency of governmental processes.”

The letter noted that having access to narrative reports helps “clarify the circumstances” surrounding deaths and fosters “a better understanding among citizens about the events that impact their safety.”

Tlomak replied to our letter nearly three weeks later on April 23. Her response read, in part:

“I recognize that this shift in operational policies and procedures is new to members of the media that cover death investigations and public safety matters in Milwaukee County. After an internal review of operational policies and procedures, it became apparent that it is not within the ME’s Office mission and purpose to provide inaccurate and/or incomplete information to the public, as the disclosure of these draft details have the potential to cause significant harm to family members most affected by a death.”

Here’s my response to that: Dr. Tlomak, if your concern is releasing inaccurate information, the appropriate next step would be to correct the information rather than stopping its release altogether. I urge you to work with the journalists who rely on the reports provided by your office to develop a solution that ensures timely access to vital information without compromising the integrity of ongoing investigations. 

Transparency is crucial for maintaining public trust.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Tim Vetscher, a council member, is news director at TMJ4 in Milwaukee. 

Your Right to Know: When people die, openness matters is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.