Wisconsin’s municipal courts can have a significant and devastating impact on the lives of people who can’t afford to pay a citation due to poverty. Without critical legal protections, unpaid municipal citations can lead to warrants, arrests and incarceration.

There is no right to counsel in Wisconsin’s municipal courts, meaning people unable to afford an attorney face court alone, compounding the cycle of poverty and punishment. These courts risk operating in ways that undermine constitutional standards and disproportionately harm vulnerable communities. Hence, there is a heightened need for transparency and accountability.

Public access to accurate court records and data is essential to upholding constitutional and statutory requirements. In December, a Milwaukee County Circuit Court judge ordered the Milwaukee Municipal Court and its judges to comply with statutory requirements mandating electronic recordings of all hearings on motions to reopen because of a defendant’s inability to pay a judgment due to poverty. Judge David Borowski found that the court and its judges “have violated and very likely will continue to act in violation of their plain duties” to record these hearings. 

These hearings can determine whether an individual faces severe sanctions, including arrest warrants, writs of commitment, or driver’s license suspensions. They also establish whether a judge is required to abide by certain poverty protections, like community service in lieu of payment for a defendant who faces incarceration due to poverty. 

The ACLU of Wisconsin, for which I work, released a report last fall that underscores both the scope and the severe consequences of municipal court practices. The data used in this report was gathered from open records requests sent to each of Wisconsin’s 219 municipal courts and 73 county jails. 

Each court and jail operates independently, with differing policies, procedures and levels of transparency. Many courts and jails either failed to respond to our open records requests or provided incomplete data. Some jails claimed they could not separate out municipal warrants or commitments, while others demanded exorbitant fees to locate records. 

Municipal courts face minimal oversight and reporting requirements. They are encouraged, but not required, to submit an annual voluntary questionnaire. 

The only statewide municipal court data published consists of the total number of cases by state, county and year, but these statistics are self-reported, unauthenticated and often incomplete. The result is an unreliable, outdated and incomplete data set that fails to provide the transparency necessary for meaningful review. 

We can’t rely only on open records as the primary tool for oversight. Governments must implement systems for collecting, vetting and reporting court data. Basic information, such as the number of warrants and commitments issued annually, how many people are jailed for failure to pay, and for how long, should be readily available. If a court or jail cannot provide this information, it should not have the ability to impose or enforce these sanctions.

Transparency is not an abstract ideal; it is a safeguard against unconstitutional practices and a tool for ensuring justice. When courts operate without transparency, individuals, especially those who are economically disadvantaged, are at a heightened risk of having their rights violated. 

Courts and carceral institutions must have standardized, reliable systems for recording, analyzing and reporting data. Wisconsin’s municipal courts must be held to higher standards of transparency, and the state must implement policies that ensure courts are accountable to the communities they serve. 

Without meaningful change, without appropriate oversight, many municipal courts will continue to punish poverty, making it difficult to ensure that community members receive the constitutional and statutory protections to which they are entitled.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Emma Shakeshaft is a senior staff attorney and researcher for the ACLU of Wisconsin Foundation.

Your Right to Know: Improve access to municipal court records 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.

There’s good news and bad news in a recent Wisconsin Court of Appeals decision upholding an open records judgment related to the ridiculous and ham-handed investigation into alleged 2020 election fraud headed by former Supreme Court Justice Michael Gableman.

On the good news side, the appellate court upheld a lower court ruling that the state of Wisconsin must pay $241,000 in legal fees because various officials — including Gableman and Assembly Speaker Robin Vos — flouted the public records law by failing to turn over legally requested information in a timely manner.

The bad news? There’s plenty. First, taxpayers — not the offending political characters — have to pony up the $241,000. And taxpayers clearly did nothing wrong.

Moreover, this case illustrates a near-fatal flaw in the state of Wisconsin’s otherwise exemplary Open Records Law. The statute is among the nation’s best, setting forth that Wisconsin considers openness the default position and holding that records requesters who are denied documents illegally may recover court costs and lawyers’ fees.

But think about that number again. Who has $241,000 to put on the line in an attempt to force the government to follow its own laws?

In this particular case, an established liberal organization called American Oversight fought to make the government abide by the law.

This same law, though, is supposed to empower every citizen to approach any level of government — the school board, the city council — and request access to public records, which then must be turned over except in relatively rare instances that fall within narrowly defined exemptions. That sounds better than it sometimes works in practice, as the Gableman case shows.

If authorities decide to be difficult and stonewall a records request, the citizen can hire a lawyer and go to court like American Oversight. And, in fairly short order, the citizen could wind up owing a lot of money.

That potential outcome is not a secret. Officials at all levels of government are well aware that prohibitive costs can lead to would-be records requesters relinquishing their rights rather than risking high legal fees. Any time that happens — and it does happen — a good law is turned upside down in a way that encourages public officials to just say no.

In the past, news media organizations frequently stood in for citizens and went up against public authorities bent on hiding secrets. That can cost a lot of money and, the state of the news business being what it is these days, fewer news organizations are willing to take on this risk. As a result, citizens’ rights to information are diminished.

An alternative does exist in the law. When records are refused, the law says requesters can turn to county district attorneys or the Wisconsin Attorney General’s Office. But again, in practice, that’s a weak option. Prosecutors are busy dealing with burglars and rapists and killers. Taking on their fellow government officials over a stack of paper is low on the priority list. It’s rare for a district attorney anywhere in the state to haul a city, county or state records custodian in front of a judge to enforce the law.

So too many officials believe they can get away with withholding public records. Or they can rest easy in the knowledge it will be taxpayers, not them, stuck with the bill even if they lose a challenge.

The Legislature could fix this, with a reform that sharpens enforcement teeth in the law. Instead, it’s the sound of silence that you hear coming from the Capitol, and every other government building.

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 Barth is the former editor of the Beloit Daily News, where a version of this column originally appeared.

Your Right to Know: How cost is used to deny access to records 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.

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.