Times calls for probe of Oneida County’s records practices

The Oneida County district attorney has given Oneida County supervisor Anthony Rio 30 more days — from December 1 — to comply with a Lakeland Times open records request, after Rio apologized and indicated that he is working on fulfilling the request.

The newspaper filed an open records complaint with district attorney Jillian Pfeifer after waiting 47 days to either receive the records or be denied.

However, while acknowledging the time extension for Rio, Lakeland Times publisher Gregg Walker has asked Pfeifer to open a probe into Oneida County’s process for answering open records requests, contending that the county is automatically routing all records to the county corporation counsel’s office for review before release.

“That’s illegal if that is what is going on, and it appears to be exactly what is going on,” Walker said this week. “In 2021, the county amended the county code to get rid of that practice, yet here it is once more.”

Walker made a request to Rio on October 13 for “all records related to your position as an Oneida County supervisor from October 1, 2022, through October 1, 2023,” including Facebook posts, Facebook comments, texts, emails, letters, and communications sent on private/personal devices.

On October 18, Rio acknowledged receiving the request and he also asked the county’s IT department for help in accessing and releasing the records, subsequent emails obtained by The Times show. Rio followed up with the IT department on October 30 to see how the request was going; IT director Jason Rhodes replied that his department was working with the county’s corporation counsel on the matter.

After that, nothing was apparently done to move the request forward — or to communicate with the newspaper — until December 1, after The Times filed the complaint.

At that point, the IT department forwarded the records to corporation counsel Michael Fugle, who apologized to Rio and said he would “get this going.”

Walker said it should have been going a lot sooner, and he said the delay is part of a long pattern of using the corporation counsel’s office to foil open records requests.

“The corporation counsel has nothing to do with supervisor Rio’s records — Rio is the custodian of his own records and Fugle is the county’s attorney, not automatically the attorney for individual supervisors,” Walker said. “This practice was supposed to have ended two years ago.”

Pfeifer’s letter

In a December 4 letter responding to Walker’s complaint, Pfeifer wrote that she agreed with the newspaper that the state Department of Justice (DOJ) defines 10 working days as a reasonable amount of time to comply with a simple request for a limited number of easily identifiable records.

However, Pfeifer wrote, the DOJ also states that a longer time may be reasonable for requests that are broader in scope.

“It is unclear, at this point, the volume of your request,” Pfeifer wrote. “Accordingly, it is difficult for me to discern what period of time is reasonable to allow compliance with your request. However, while not required, I would note that DOJ suggests custodians of records respond to the initial open records request indicating as to when a response can reasonably be anticipated.”

While Rio did respond five days after receiving the October 13 letter, he did not indicate when or if the records would be released.

Pfeifer also wrote in the letter to Walker that she had spoken with Fugle, who relayed to her that Rio had sent an email after the complaint was filed apologizing for the lapse and that Rio was working on releasing the records.

“In response to your request that I file a writ of mandamus, I would note that a voluntary release of records following the filing of a writ of mandamus, renders the mandamus moot,” she wrote. “Therefore, as a practical matter, I have decided to allow Mr. Rio an additional 30 days, from December 1, 2023, to comply with your open records request. I have advised corporation counsel Fugle, if Mr. Rio has not complied by the end of the 30 day period, I will reconsider your request to file a writ of mandamus.”

Walker’s response

Walker replied to Pfeifer on December 5, saying he understood the reasoning behind the 30-day extension but also urging Pfeifer to investigate the county’s continued use of the corporation counsel to screen all records that have been requested.

“I understand and have no argument with your reasoning for giving Mr. Rio an additional 30 days to release records pursuant to this request …,” Walker wrote. “That said, the fact that he has already violated the law should not go without accounting. Mr. Rio, in his only response to the newspaper acknowledging his receipt of the records request, did not indicate when the records might be released, did not ask for additional time, and did not even indicate at that time if any records would be released. Further, Mr. Rio effectively admitted breaking the law by adopting an approach of, in his words, ‘out of sight, out of mind.’”

Walker said Rio has by his own admission violated the law, and that the overall county response was a classic delay tactic that Oneida County routinely uses to delay records.

“It is clear to me, as this letter shall assert, that Mr. Rio, the county’s corporation counsel, and the county itself have and are acting arbitrarily and capriciously,” Walker wrote. “Unlike the above scenario, however, there is a remedy the court can provide because the county’s long-standing process in fulfilling open records requests, I believe, violates the public records law. I therefore ask that an investigation be launched into the legality of the county’s open records practices.”

Walker described the matter as one of utmost importance, given what he characterized as the county’s “cavalier, if not hostile, approach to compliance,” which he said was again at work in the Rio request.

“The bottom line is, from the emails we have seen, it appears that all of Mr. Rio’s records have been shipped to Oneida County corporation counsel Michael Fugle ‘for perusal,’” he wrote. “This continues a highly inappropriate practice that was at the heart of a previous ordinance controversy.”

Under the previous code, after a records request, custodians — including elected officials — were required to forward to the corporation counsel for review any record where a question existed about its releasability under records exemptions. The code required a joint decision between the custodian and the corporation counsel whether to release the record.

“Put simply, this violated state statute, and in actual practice it meant that not only questionable records but all records were routinely channeled to the corporation counsel for review, creating unacceptable and illegal backlogs,” Walker wrote. 

In the letter, Walker cited a 2020 memo sent by sheriff Grady Hartman to the then county board chairman, in which Hartman said he believed the requirement for the corporation counsel to review requested records conflicted with state statutes and transferred custodial power over records to county attorneys:

“I do not believe this paragraph is legal, nor does it fall in line with Wisconsin state statutes,” Hartman wrote in that memo. “The current wording has the effect of making the corporation counsel the records custodian for all the records. In turn, it slows down the release of the records.”

Walker also cited the impact of the practice, as described by then supervisor Jack Sorensen on the county board floor: “The bottleneck has become that the ‘shall’ in the ordinance means that every last document goes through corporation counsel. I think that’s an over interpretation of what’s required. Some things, yes, when we are dealing with a personnel issue or something along those lines, that’s understandable. But when we get into every little mundane item, the custodian of the documents is the department head and if he or she feels there’s a question, they can consult, but the entire process shouldn’t be every document.”

The code provision and its application was and is illegal, Walker asserted, and ultimately the ordinance was changed. 

“The ‘shall’ was changed to ‘may’ (officials may consult the corporation counsel on a records request),” he wrote to Pfeifer. “In one sense, though, the ordinance now is worse than it was, for the code sanctions a corporation counsel review of all records in a request, not just those where a question exists about its releasability — even those ‘mundane items’ Mr. Sorenson referred to.”

Talking the talk, not walking the walk

The bottom line is, Walker continued, the code was changed but not the county’s practice. 

“Now, as then, all records subject to a records request are forwarded to the corporation counsel,” he wrote. “Then, as now, requests are not filled in a timely manner. The requests linger and linger, as this case demonstrates.”

The channeling of all records in a records request to the corporation counsel is legally problematic, especially when the records requested are those of elected officials, Walker asserted. 

“As the sheriff noted, the corporation counsel has no jurisdiction over the records of county elected officials,” he wrote. “Elected officials are the custodians of their own records. The corporation counsel is not the custodian of any records except his own and those of the corporation counsel’s office. State statutes grant the records custodian the full and complete power to make decisions on records, thus, while an elected officials is free to seek advice on a request, sending records to the counsel’s office is no excuse to evade the timely release of those records.” 

Consider the facts of this request, Walker contended, and the inescapable conclusion is that, once again, there has been a deliberate attempt to evade such timely response. 

“Mr. Rio sends out a ‘help’ through county channels on Oct. 18,” Walker wrote. “On October 30, Mr. Rio followed up: ‘Hi folks... I was just wondering if you had any movement on this as I haven’t heard anything. Thanks! Tony Rio.’

Also on October 30, IT’s Jason Rhodes writes that  “we’re working with Mike Fugle to make sure we use the correct criteria and to double check that the request is still valid. When we run them, we’ll be running the query for all the board supervisors. Mike is back in the office on the 1st. I should have more info then.”

That email raises all sorts of questions, Walker contended. 

“For starters, why is IT working with Mr. Fugle?” he wrote. “The emails Mr. Rio sent to us show no request by him for IT to work with Mr. Fugle. Indeed, Mr. Rio’s request is technical in nature, simply a request for IT to help him release the records, not run to the corporation counsel to have them reviewed: ‘Hi folks... can you help with this? I don’t know how you usually do this, but i [sic] assume just big fat pdf files of the messages from that timeframe from my inbox, sent messages, and trash? Please let me know if there is something I can do on my own short of just manually printing every message (oof). Thanks! Tony Rio.’”

In short, Walker continued, The Times has received no evidence that anyone asked IT to do anything except help Mr. Rio access and release the records. 

“Second, why would IT check to see that the ‘request is still valid?’” Walker wrote. “What is their jurisdiction and what does that even mean? Why would they run the query for the entire county board when no one asked them to? All of this is highly suspicious, likely illegal, and we believe warrants an investigation into the practices of the county.”

After that October 30 update, no one did anything, Walker observed. 

“Not the corporation counsel. Not IT. Not Mr. Rio,” Walker wrote. “Then on December 1, after the complaint is filed, IT suddenly forwards all the records to Mr. Fugle, who has absolutely no jurisdiction over them. Note that the records are not forwarded to the custodian but to another party without any request to do so, a continuation of the very practice that the 2021 code revision of the public records provisions was supposed to end precisely because it is illegal.”

Again, Walker reiterated, the code changed to make it compliant with state law, but not the illegal conduct. 

“Indeed, after the December 1 complaint and after IT forwarded the records to Mr. Fugle, it was Mr. Fugle’s turn to apologize to Mr. Rio,” Walker recounted: “Hi Tony, My apologies for not following through. I will contact Jason and get this rolling. Mike.”

The ball should have been rolling the day the request was sent, Walker said.

“It’s funny how in Oneida County everybody keeps apologizing but somehow the apologies never seem to lead to better practices that actually comply with the law,” he said. “It’s also funny that, after the complaint was filed, Mr. Rio immediately forwarded to The Times all the emails he had related to the records request and its internal status. He made the decision to release them — they paint him in a favorable light compared to the IT office and the corporation counsel — without any review by Mr. Fugle. Once again, it appears that a legal complaint is necessary for Oneida County officials to actually fulfill their legal responsibilities with respect to open government.”

A problem of a different -ematic

The fact that the records were automatically routed specifically to the corporation counsel’s office was even more problematic than the diversion of records to an unauthorized party with no jurisdiction, as egregious as that was, Walker wrote to Pfeifer. 

“The fact is, the corporation counsel represents the institutional interests of the county, not the interests of individual supervisors and elected officials such as the sheriff,” he wrote. “As such, Mr. Rio individually is not automatically Mr. Fugle’s client. As such, there is no automatic attorney-client privilege.”

Most important, Walker stressed, the county corporation counsel is judging the records and possible exemptions and redactions from the institutional point of view of the county as a whole, not that of the individual supervisor. 

“Indeed, it is not uncommon to have explicit conflicts of interest arise between a county corporation counsel and individual elected officials, making the corporation counsel uniquely disqualified to be the person to review the records of an elected official,” he wrote.

Walker cited a 1983 attorney general’s opinion involving Kenosha County, in which the attorney general points out the reality that such conflicts may exist and that the corporation counsel may not be able to serve its ordinary function.

“There is no inherent conflict between providing representation to the county board and providing such representation to the county executive or other county officers,” the opinion states. … “As a practical matter, however, providing representation to the county is more complicated because many county officers are elected and because the division of authority between county officials is not always clearly defined.”

Although the true client of the district attorney or corporation counsel is the county, the AG opinion continued, there may be situations where potential conflicts of interest arise in attempting to serve that client. 

“While it is impossible to predict all situations in which conflicts may occur, a district attorney or corporation counsel may well face a potential conflict if there is litigation between the county board and the county executive,” the attorney general opined.

In other words, Walker wrote to Pfeifer, a conflict of interest can make it impossible for the corporation counsel to represent both the county as a corporation and the elected county executive as an individual, and that applies to other elected officials as well. 

“This is particularly and inherently true of records requests made to individual elected officials — because the records under review have not been released, it is impossible for the public to ascertain whether there is in fact a conflict of interest,” Walker wrote. “As such, as in the case under review in 1983, which concerned the retention of outside counsel, it would seem that outside counsel should be the appropriate response when an elected official cannot make his or her own determinations about the release of any records. Only then can potential conflicts, and the perceptions of conflicts, be avoided.”

In sum, Walker concluded, the county’s ongoing practice of automatically having the corporation counsel review all records subject to records requests is not only practically violative of the law because it causes incessant delays, it is substantively and directly a violation of the law because, as Hartman stated in 2020, it transforms the corporation counsel into the records custodian, subjects records and the decision-making process to parties that have no jurisdiction over those records, and enables a legal relationship between the institutional legal counsel and individual elected officials that invites and certainly would conceal conflicts of interest, hardly an outcome intended by the law.

“We request that your office immediately conduct an investigation into the ongoing practice of this illegal records scheme, which the county has cleverly tried to hide through a revision of its code language without the inconvenience of actually changing its unlawful conduct,” Walker concluded.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.