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The two most common complaints I hear from people seeking public records are “Why is it taking so long?” and “Why does it cost so much?” Unfortunately, it’s often difficult to mount a successful legal challenge to delays or fees because of the way the state’s laws are worded.

Wisconsin’s Open Records Law imposes no deadline on producing records. All it says is they must be produced “as soon as practicable and without delay.” What does that actually mean? While the state Department of Justice recommends that simple requests receive a response within 10 business days, the DOJ itself doesn’t heed its own advice, often taking months — even years — to fulfill requests.

Courts haven’t given much guidance. They’ve essentially said it’s a reasonableness test that takes into account the size and complexity of the request, the resources of the government agency, and whether they are making a good faith effort to comply. But how long is too long? 

Ideally, we’d have a deadline in our law, as some other states do. This may require prioritizing resources properly, which should already be happening. Fulfilling record requests, the law says, is “an essential function of a representative government and an integral part of the routine duties” of public officials.” And yet I’ve seen agencies with budgets in the hundreds of millions of dollars who have one person doing this work.

The other common problem with the records law is it allows custodians to charge fees for complying with records requests. Here, I am especially concerned about “location” fees. The government can charge for the “actual, necessary and direct cost” of finding records, typically at the hourly rate of the lowest-paid employee capable of searching. But sometimes this is still a considerable amount, and some custodians even want to charge for employees’ benefits.

This amounts to, essentially, the government getting paid twice for the same work. Our taxes already pay the salary or wage of the employee searching for records. The requester pays them again.

Permitting location fees also incentivizes government agencies to be sloppy in their recordkeeping. The more disorganized their records are, the longer it will take them to find records, so the more money they can collect from requesters. Those high costs also discourage requesters from following through with requests.  

For example, I’ve run into police departments that still store their personnel records in paper boxes, so if somebody wants, say, disciplinary records, the department can quote an often prohibitively high price to search each box for disciplinary files. Even if records are stored electronically, they can be hard to retrieve if they are not sensibly organized.

How can we fix these twin problems? If I were in charge (and I’m not), I’d put a strict deadline in the law and eliminate location fees altogether. But realistically, we are unlikely to see either reform. 

Perhaps a more practical solution would be to tie the two problems together. Change the law so that custodians can charge location costs only if the records are produced within a strict deadline — perhaps 10 business days.  

That compromise would incentivize better, more organized record keeping. Government agencies would now want to keep their records — especially those people frequently request — arranged in ways easy to search and easy to find. It would also incentivize them to devote enough resources to fulfill record requests promptly.  

The result? Requesters will get records faster and cheaper, and government agencies might also see a net increase in revenue, as more requesters opt to pay for prompt service rather than walk away.

Pairing these two issues is an idea worth pursuing.

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: How to solve high record costs and long delays 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.

A Dane County Circuit Court judge ordered the Wisconsin Department of Justice to release its list of about 16,000 law enforcement officers certified in the state. 

The lawsuit was brought by media outlets the Badger Project and Invisible Institute. Police officers in Wisconsin are required to be certified by the state’s Law Enforcement Standards Board. The DOJ has previously released partial versions of the list, arguing that the full database could compromise the identity of officers working undercover. 

Both outlets have frequently written about “wandering cops” who leave departments due to misconduct or abuse only to be hired by another agency. The DOJ list includes a record of cops being fired or resigning in lieu of termination. 

Judge Rhonda Lanford ruled on Tuesday that the DOJ’s argument against releasing the list went against the state’s open records law. 

“When responding to records requests, there is a strong presumption of openness and liberal access to public records,” she wrote.  “[T]he DOJ has not met its burden to show that this is an ‘exceptional case’ warranting nondisclosure.”  The judge concluded that DOJ’s denial “was not the product of a genuine, case-by-case balancing analysis, but rather a habitual denial based on [its] past inability to garner compliance from local agencies.”

Lanford noted that law enforcement officers hold a public position and therefore “necessarily relinquish certain privacy and reputational rights by virtue of the amount of trust society places in them and must be subject to public scrutiny.”

Tom Kamenick, the lead attorney in the lawsuit and founder of the Wisconsin Transparency Institute, said the decision was a win for transparency in Wisconsin government and the requirement that officials must prove real risk of harm when denying an open records request. 

“Courts have ruled time and time again that speculative fears of harm do not justify withholding government records from the public,” Kamenick said in a statement. “Government officials must do more than merely claim that, hypothetically, something bad might happen if the records are released.  Rather, they must show that harm is likely to occur and is sufficiently serious to overcome the presumption of access to government records. DOJ could not do that here.”

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Wisconsin’s Open Records Law gives requesters the right to request records from their government. After all, as the law states, “a representative government is dependent upon an informed electorate.” 

But how to get started? Under the law, “any person” can make a request for records from any Wisconsin state or local government agency or official, verbally or in writing. You don’t have to start from square one: There are many tools available to help you make requests and ensure you get the records you want with minimal fuss. 

The Wisconsin Freedom of Information Counsel has long posted a records request template on its website, wisfoic.org. It cites Wisconsin law and uses language to target your request and help you avoid surprise fees.

Many national groups also post letter generators online that can be used to make requests to state and local governments.  

For example, the Student Press Law Center, a nonprofit organization devoted to assisting student journalists, posts a heavily used letter generator, which is available for free and can be used to make requests.

An organization called MuckRock not only has a letter generator, but also allows users to post responsive records they receive on its website at muckrock.com. Here you can search through records others have received from all over the country.

Other groups post records they have received through their own open records and U.S. Freedom of Information Act requests.  

For example, a group called Reclaim the Records posts genealogical and historical records on its website, reclaimtherecords.org. The website governmentattic.org provides a searchable collection of oddball federal government records and reports.

Of course, this is in addition to records the government proactively publishes or posts online itself. A wealth of information is already available on Wisconsin agency and local government websites, or in local libraries. 

Federal agencies are even required to follow the “Rule of 3,” or make electronically available records that have been requested three or more times. The website data.gov contains more than 400,000 datasets, from what it describes as the home of the U.S. government’s open data.

In some cases, it may be easiest just to start with a phone call to the state or local agency that has the records you want. It may be able to send you the record on the spot, or help you understand available records to target your request.  

If you’re looking to better understand the law, the Wisconsin Department of Justice Office of Open Government posts numerous resources online, including its Public Records Compliance Guide, which is helpful for requesters and records custodians alike.  

A well-drafted records request is useful for everyone: It can help requesters get the records they want, in less time, and at a lower cost. It can also help custodians find records more easily, freeing them up to respond to others’ requests and carry out other duties.

But the most important tip is to not be intimidated by the process: There are no magic words required to trigger your right to get records, and the law must be interpreted broadly in favor of access.

Wisconsin’s Open Records Law, by design, makes it easy to get records, to fulfill its important objective of informing the electorate. Don’t hesitate to exercise your right to use it.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government. Christa Westerberg is the group’s vice president and a partner at the law firm Pines Bach LLP.

Your Right to Know: How to jump-start your records requests 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.