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Know your rights to public information

By Mike Heine
The Week

(Published March 13, 2007, 4:54 p.m.)

Sunshine Week is a time to remember that you have a right to know what goes on in your government.
But what information can you find out? And how do you get access to it?
Navigating through the bureaucratic sea of government offices, officials and documents can be perplexing, but not if you know what's available and how to get it.
The Week-using various sources including the Wisconsin Freedom of Information Council and the Wisconsin Department of Justice-compiled some common questions and answers about your right to know.
(Download Open Meetings Law Handbook I Open Records Law Handbook)

Q: What government meetings are open?
A: The Open Meetings Law creates a presumption that meetings of governmental bodies must be held in open session. Although there are some exemptions they are to be invoked sparingly and only where necessary to protect the public interest. The policy of the Open Meetings Law dictates that governmental bodies convene in closed session only where holding an open session would be incompatible with the conduct of governmental affairs.

Q: What are some examples of government bodies that must follow Open Meetings Laws?
A: The definition of "governmental body" includes a "state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order." Such bodies can include county, city, town or village boards or councils and their committees and commissions, a county board of adjustors, a planning commission or zoning board of appeal, a library board created by ordinance, a citizen's advisory group created by a mayor, school boards, a consortium of school districts created by contact between districts and others.

Q: When can members of the public speak at a meeting?
A: The Open Meetings Law does not grant citizens a right to participate in meetings. There are, however, a number of state statutes that require public hearings be held on specific matters, such as a government's budget or the creation of a Tax Incremental Financing District. In the absence of such a statute, the governmental body is free to determine whether to allow citizen participation at its meetings. A governmental body does not violate the Open Meetings Law by limiting the degree to which citizens participate. Governmental bodies can receive information from members of the public if the public notice of the meeting designates a period for public comment. The law also allows a governmental body to discuss, but not to act on, any matter raised by the public during a comment period.

Q: When can a governmental body meet in closed session?
A: There are thirteen exemptions to the open session requirement that permit, but they do not require a governmental body to convene in closed session. The most common exemptions include: judicial or quasi-judicial hearings, employment and licensing matters (dismissal, demotion, promotion, discipline, etc.), consideration of personal information (financial, medical, social), conducting public business with competitive or bargaining implications, conferring with counsel with respect to litigation.

Q: Can I request to just view records if I do not want copies?
A: Yes. Statutes allow a citizen to inspect and copy public records. Under this statute you have the right to view or inspect public records without purchasing copies.

Q: What is the "balancing test" that is used in determining if a record should or should not be released?
A: The records custodian must balance "the public interest in disclosure of the record" against the "public interest favoring non disclosure." The custodian must consider all relevant factors to determine whether allowing record access would result in harm to the public interest that outweighs the legislative policy recognizing the public's interest in allowing access. The custodian must determine whether the circumstances create an exceptional case not governed by the strong presumption of openness.

Q: Are electronic records subject to the Open Records Law?
A: Yes. Where a record originated, and where or how it is stored, does not affect the public's right of access. If a public official conducts public business using his or her home computer, his or her e-mails and records concerning government business are still subject to the Open Records Law, even if he or she stores them on a home computer.

Q: Do I have to say who I am and why I'm making a public records request?
A: No. The requester generally does not have to identify him or herself or state the purpose of the request. The custodian of some records, such as those concerning student or health information, may confirm that the requester is statutorily authorized to obtain the records before releasing them.

Q: Why should I make an open records request in writing?
A: Verbal requests are allowed, but if you make a written request for a record the authority must respond to your request in writing "as soon as practicable and without delay." If the custodian of the record chooses not to grant your request, it must explain the reasons for the denial in a written response. You cannot file an enforcement action challenging the custodian's denial of your request without first having written proof of both your request and the response. Furthermore, in enforcement proceedings, the court will consider only the reasons offered by the custodian in the written response as justification for the denial.

Q: What do I need to include in a written open records request?
A: A request should reasonably describe the desired record or information. While the request should be broad enough to encompass all records that you seek, a request without reasonable subject matter and or time limitations may be denied as overly broad. Excessively broad requests can also lead to substantial charges for locating and copying records.

Q: I'm interested in finding out what a county board discussed in closed session. How can I do that?
A: You are free to call the board members and try to get them to talk to you. There is nothing in the state Open Meetings Law that prohibits them from speaking with you after the session is over. You also may file an open records request for the minutes of the meeting. Statutes require motions and roll call votes be recorded and available for public inspection. However, motions are typically phrased to conceal the confidential information that justified closing the meeting.

Q: Can I make an open records request for police records, such as daily arrest records or records involving an investigation?
A: Police records are presumed public and, like all records, their release is subject to the common law balancing test. In many cases, the police department withholds records claiming their release may interfere with an ongoing investigation. At a minimum, all daily arrest records are open to the public.

Q: How can I get copies of documents that will be discussed at a meeting before the meeting?
A: This issue is governed by the Open Records Law, not the Open Meetings Law. Generally, documents circulated to the members of the governmental body in advance of a meeting are presumed public. Many governmental bodies routinely provide the news media copies of the same packet given to members, but anyone can request copies under the Open Records Law.

Q: How much notice must be given before a meeting?
A: Statues require 24 hours notice "unless for good cause such notice is impossible, or impractical." Even where there is good cause for shortened notice, notice of a meeting cannot be posted less than 2 hours before the meeting is held.


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