The other day, in my role as an advocate for open government, I heard from a Wisconsin resident who has waited more than five months for records he requested from a local law enforcement agency. He has gently prodded the agency several times, asking, “How much more time is my request going to take?” More than three months have passed since these queries have yielded a response.

Such long, frustrating wait times are not uncommon. Wisconsin’s Open Records Law allows any person to obtain any document in the possession of state and local government officials, with limited exceptions. But, unlike in some other states, there is no set time limit. Rather, the law simply directs record custodians to act “as soon as practicable and without delay.” 

What does that mean? Good question.

The state Justice Department has said that “10 working days is a reasonable time for an authority to respond” to simple records requests. But this is not binding advice. Moreover, no court has ever ruled that a particular wait time was excessive.

I tell people experiencing long wait times to practice their “Ps”: Be polite. Be persistent. And be pragmatic — offer to clarify or refine your request to make it more manageable. Sometimes, this helps move things along. Other times, it seems to make no difference.

That’s where Tom Kamenick comes in. He is the founder and president of the Wisconsin Transparency Project, the state’s only law firm devoted entirely to open government litigation. Since 2019, Kamenick has filed seven lawsuits alleging illegal delays in the processing of open records requests. He has lost only one case — in which the records were provided but had ended up in the requester’s spam folder. 

His other six cases ended in settlements favorable to the requestors: Records were provided, legal costs were covered and, in at least one case, the custodian apologized. The problem is that these settlement wins do not set a legal precedent that can be cited by others, although they do add credibility to threats of legal action.

Last year, Kamenick sued the Madison Police Department on my behalf after it told me to expect a wait time of 14 months to obtain records related to police discipline. The office hired additional staff and authorized overtime to reduce its backlog. Last month, Kamenick sued the Racine County Sheriff’s Department on behalf of a local resident, Mitchell Berman, over its long delays in producing records including video footage. “Delays like this are all too common,” Kamenick noted in a statement. 

Custodians often contend they lack the staff and resources to handle requests more promptly. Kamenick’s response is to say it isn’t a question of resources but priorities. One school district he sued had a $600 million budget and assigned a single staff position devoted to records requests, then allowed that position to go unfilled.  

Indeed, the records law expressly states that handling records requests “is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information.” That means it should be more of a priority.

Eventually the courts should weigh in on this, in a precedent-setting case. The problem also cries out for a legislative solution. A revised law could still say “as soon as practicable and without delay,” but also set a time limit of, say, 30 days, for records to be provided, absent extraordinary circumstances. Perhaps the state could provide additional funding or guidance to help make this doable —  certainly there are worse ways it could spend its $4.6 billion budget surplus.

There is an old saying that justice delayed is justice denied; the same is true for records requests. If you don’t get the records until you can hardly remember what you wanted them for, the law is not working as intended. 

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Bill Lueders, a writer in Madison and editor-at-large of The Progressive, is the group’s president.

Your Right to Know: Long waits undercut records law 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.

Last March, the Wisconsin Examiner asked the Black River Falls Police Department to search for emails regarding the death of a missing Indigenous man. The department said it would process the request but the news outlet would have to pay $4,400. That’s the amount the city’s IT vendor, Tech Pros, quoted to perform the search.

It was a dramatic illustration of a growing problem. More and more government agencies are using outside vendors to store their electronic records and relying on those vendors to do the searching when somebody makes a request for emails, bodycam videos, or other records. Such outsourcing is touted as a cost-saving measure, but it can make obtaining records prohibitively expensive, as the Examiner found. 

Government agencies typically pay vendors a set fee for storage, but there often is a separate charge for search and retrieval of archived files. Can a government authority in Wisconsin pass those vendor fees on to record requesters?

The Black River Falls Police Department thinks that it can. In response, the law firm I run, the Wisconsin Transparency Project, filed a lawsuit against the department on the Examiner’s behalf.

I don’t intend to dive into the weeds of the legal arguments of that case. Rather, the case highlights some of my serious concerns with the practice of hiring outside parties and then passing on those costs to records requesters.

Wisconsin’s open records law allows government custodians to charge only their “actual, necessary, and direct costs” to fulfill record requests. In other words, they are not allowed to profit from records requests. I would argue that this also means they cannot fob off their record-keeping responsibilities to somebody who does. 

The law itself says this rule remains in place for records “produced or collected by a person who is not an authority pursuant to a contract entered into by that person with an authority.” That raises several issues.

First, the fees quoted by an outside vendor are not a “direct” cost. They’re a cost being imposed (and even calculated or arbitrarily decided) by the vendor, not the government.

Second, is it really “necessary” to use such an expensive vendor? Can a government agency intentionally develop an arrangement that shifts additional and outrageous costs onto record requesters? 

Finally, is this an “actual” cost? It may be what the vendor is charging the government, but the vendor’s actual costs are likely far lower because the vendor is making a profit. The vendor is incentivized to charge an exorbitant amount, knowing its true customer (the government) won’t have to pay it.

Another problem with the use of outside vendors is compliance with record retention laws.  Government agencies are required to keep their records for a certain amount of time before disposing of them. Different agencies and categories of records are subject to different retention periods, but most records need to be kept at least seven years.

I’ve twice recently run into situations where outside vendors weren’t following those laws. In the first instance, emails produced by a vendor were missing all their images. Those images had been replaced by a placeholder question mark. In the second instance, the vendor was completely unable to produce emails that had been sent by the government agency more than a year prior.

When vendors mess up like this, any liability falls on the government agency for failing to keep records properly. That’s a big risk to take. Government officials should make sure their vendors are aware of retention laws and ideally agree to indemnify the government for any liability caused by their mistakes.

The use of outside vendors to store government records raises a host of potential problems. The better practice would be to keep records “in house,” or at the very least use a service that permits the government unfettered access and searching without the need to pay the vendor additional money.

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: Using outside record vendors brings risks 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.