Public Records Request is Not Discovery

Wisconsin’s public records laws can’t be subverted by seeking a stay of the action in federal court.

The 7th Circuit on Nov. 29 concluded that the purposes of discovery stays in federal securities litigation would not be served by permitting public records requests to be stayed.

The City of Menasha issued millions of dollars in bonds to finance the conversion of an electric power plant it owned. The project went over budget, and Menasha defaulted on more than $20 million worth of bonds.

Owners of the bonds, including American Bank, filed suit in federal court, alleging that Menasha violated federal securities laws by failing to disclose material information about the project to prospective buyers of the bonds.

After the suit was filed, American Bank sought records related to the project under Wisconsin’s Public Records Law.

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Local Officials Learning About Wisconsin's Public Records Laws

Local government and law enforcement officials met today to learn more about the state's public records laws.

The Wisconsin Department of Justice hosted the seminar today in Wausau.

State Attorney General J.B. Van Hollen was there. He says it's important for the government to be as open as possible, and the seminar helps the community understand their rights and responsibilities.

"Part of our role in the Department of Justice is to make sure that we can educate and inform the general public and local officials as to the nature of the law and how they can apply it to different facts. Reaching out in the community like this is one of the ways we do that," Van Hollen says.

Van Hollen says the information will help prevent agencies from making unintentional open records law violations.

Participants included city and county government leaders, law enforcement officials and media representatives.

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City of Memphis Disputes Cause for Firing of Public Records Coordinator

The city of Memphis did not fire its public records coordinator for filing a records request but for failing to adhere to the "policies and procedures" of the legal division, Chief Administrative Officer George Little said Monday.

"There was no retaliation," Little said during an afternoon briefing at City Hall. "There is a history that precedes the request."

On Friday, City Atty. Herman Morris fired Bridgett Handy-Clay hours after she filed an open-records request for the payroll, leave and personnel files of every employee in the City Attorney's Office.

Little said Handy-Clay recently had an encounter with her supervisor, Cathy Porter, before she filed her open-records request and was ultimately dismissed.

"I gather there may have been some conflicts there," said Little.

When reached by phone Monday afternoon, Handy-Clay said she isn't sure how she could have violated any policies of the legal division.

"There are no policies and procedures that govern that City Attorney's Office," she said. "We'll see. What did I do? I'm sure my attorney will be able to comment."

Last week, Handy-Clay said her request involved "nepotism and cronyism."

Little said there may be employees related to each other in the legal division but their performances do not appear to be a problem.

"At the end of the day what we want is performance, regardless of family background," said Little.

Little said the city would fulfill Handy-Clay's open-records request. Morris met with staff members Monday morning to tell them that detailed work information would be provided to Handy-Clay and could be made public.


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Social Media Adds a Twist in Public Records

In some cases, posting a message to a social networking site such as Facebook can be as public as writing a letter to the editor.

But if government is doing the Facebook posting, is it public record?

It's a new concept that Herschel Fink, a Detroit-based attorney specializing in media law, said appears to be untested in Michigan courts. But he thinks social media activity by government should be considered public record.

"If government and officials are communicating on issues of government policy, using these new means of communication - social media - then the public has to have access to that as well," he said.

Public record, Fink said, is anything of an informational nature that is created by, received by, kept by or used by a public body.

All public records, unless falling under narrow categories of exception, are under the purview of Michigan's Freedom of Information Act.

Some cities and states appear to be acknowledging on their own that their social media activity is public record.

"City of Seattle social media sites are subject to State of Washington public records laws ... " reads Seattle's social media policy, which is available on the city's website, www.seattle.gov. "The Department maintaining the site is responsible for responding completely and accurately to any public records request for public records on social media."

North Carolina takes a similar position in its social media policy, which was published in December 2009.

Michigan is in the process of finalizing a policy, said Kurt Weiss, a spokesman for the state's Department of Technology, Management and Budget.

"What the state realizes is like other states, younger generations are getting their messages in other ways, be it Facebook or Twitter," he said. "So when the state has important information to share, that's an important avenue we have to look at."


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House Rejects Oil Leak Public Records Legislation

The Louisiana House voted Thursday against making public those records in the Governor’s Office and other government agencies that are associated with the BP Deepwater Horizon Gulf oil rig disaster.

State Rep. Wayne Waddell, R-Shreveport, proposed adding the public records provision to Senate Bill 167, which addressed the confidentiality of cemetery records.

But the House balked with 42 representatives voting for the change while 54 voted against it. The legislation needed 53 votes to pass.

The failed effort essentially served as a test run for similar legislation that returns to the House for a concurrence vote as soon as today.

The vote came a day after the Louisiana Senate — without anyone voting against it — supported the public records amendment being tacked onto other legislation without discussion or debate. That legislation, House Bill 37, needs a vote by the House on whether to agree with the Senate’s addition.

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High Court Hears Arguments on Petitions And Privacy

Supreme Court justices expressed skepticism, some bordering on outrage, Wednesday for arguments that people who sign a petition for a state referendum should be about to have their names kept private.

Speaking to the lawyer challenging a Washington state open-records law, Justice Antonin Scalia said, "The people of Washington evidently think that this is not too much of an imposition upon people's courage — to stand up and sign something and be willing to stand behind it."

Scalia was most vigorous in protesting arguments that Washington residents who signed a petition for a ballot measure against gay legal rights had a right to privacy in their political speech.

"What about just wanting to know their names so you can criticize them?" asked Scalia, prompting laughter in the courtroom. "Is that such a bad thing in a democracy?"

In another vein, Justice Sonia Sotomayor questioned whether arguments against public disclosure of names could extend beyond the context of ballot initiatives and possibly hide important government operations from the public.

Most open to the challengers' case was Justice Samuel Alito, who questioned the states' interest in trying to make the signatures public. He worried about people who might be "dissuaded from signing because they fear retaliation."

Alito asked Attorney General Robert McKenna, defending the open-records law, whether a state could require phone numbers, as well as addresses, to be made public, or whether someone's religion could be noted on the petition. McKenna said yes on phone numbers but no on religion.

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N.J. Mayor Proposes Limit to Requests Under Open Public Records Act

Longport Mayor Nicholas Russo is at his wits' end after his town put up a costly fight staving off a resident who filed excessive records requests to simply "bust chops."

Russo has proposed amending the state's Open Public Records Act, which provides guidelines for interaction between the public requesting government information and the agencies that provide it. Under his proposal, there would be a limit on the number of requests individuals and private agencies could make during a certain time.

Open government advocates have cringed at the idea of putting any type of restriction on records requesters. The current law, some say, already offers solutions for records requests that pose to substantially disrupt operations in towns, big and small.

Moreover, advocates say municipalities that put off investment in e-governance technology — such as providing a searchable electronic database of government documents on the Web — do more to hurt taxpayers than help them.

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Law Enforcement Officers’ Home Addresses Could Be Removed From Public Records

Idaho police officers want to remove the home addresses of all law enforcement officials from state public records. The protection would cover police officers, prosecutors, judges, and corrections officers.

“It’s easy for people in the public, including criminals, to find a police officer’s home address and threaten their spouses and children,” Boise Police Officer Joel Teuber told the Senate State Affairs Committee Friday. Teuber, who also spoke for the Idaho Fraternal Order of Police, said attacks and threats to law enforcement officers have increased during the past few years, including threats to employees at state prisons. “They’ve had several incidents where inmates’ family members have gotten a hold of a correction officers’ home phone numbers and addresses and used that to harass, threaten, and intimidate staff members and their family, sometimes to the point of using it to coerce the staff members to do favors for the inmates.”

Teuber said taking the home addresses out of public records would provide a needed safeguard. “It’s a little disconcerting,” he said. “Not so much to me, but more to my wife and my kids. And I think that applies to most judges and prosecutors.”

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Lawsuits Increase Despite White House Transparency Pledge, Court Records Show

More than 300 people and groups have sued the Obama administration fighting to get federal government records in the year since President Obama pledged his administration would be the most open in history.

In case after case, the plaintiffs contend that little has changed since the Bush administration, when most began their quests for records. Agencies still often fight requests for disclosure, contending that national security and internal decision making needs to be protected.

The lawsuits cover a wide range of issues. A retired Marine wants to review soldier autopsies to learn whether the Pentagon has issued defective body armor. A Texas law professor questions whether the route for the Mexico-U.S. border fence unfairly harmed minority landowners. Closer to home, the Chesapeake Bay Foundation continues its fight to learn whether agencies are properly punishing those who destroy wetlands.

Despite the administration's progress in opening scores of important and once-secret documents, court dockets show a slight increase in the number of suits filed under the federal Freedom of Information Act since Obama was sworn into office. The electronic court records show 319 lawsuits filed since January 2009. Under the final two years of the Bush administration, 278 and 298 records lawsuits were filed in 2007 and 2008, respectively. People seeking records can sue only after the government repeatedly rejects their requests, usually after months of attempts and appeals.

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