Pfeifer: No power to prosecute systemic open records violations

Saying she understood the newspaper’s frustration, the Oneida County district attorney has nonetheless declined a request by Lakeland Times publisher Gregg Walker that the district attorney’s office investigate Oneida County’s open records policies.

In a Dec. 13 letter to Walker, district attorney Jillian Pfeifer wrote that she has no statutory power to prosecute broad records matters that do not involve specific, individual records violations.

Walker had 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, a process the newspaper asserts is highly inappropriate and, in many instances, likely illegal.

Given Pfeifer’s response, Walker sent letters this week to Oneida County chairman Scott Holewinski and county administration committee chairman Billy Fried, asking that the county’s administration committee cure the matter by amending the county code. Walker sent a similar letter to state Rep. Rob Swearingen (R-Rhinelander), asking him to help craft state legislation to provide remedies and penalties for systemic violations of the open records law.

The county amended its code to address the review process in 2021, ostensibly to end what was then a mandatory code requirement to send any record subject to a request to the counsel’s office for review whenever a question existed about the record’s releasability. In reality, all records were being sent to the counsel’s office. 

While a 2021 code amendment was meant to solve the problem, this past month The Times discovered the practice was still ongoing after making a records request to supervisor Anthony Rio.

The newspaper filed an open records complaint with Pfeifer after waiting 47 days without receiving the records and without being denied. Through emails obtained by The Times, the newspaper subsequently learned that the county’s IT office had sent Rio’s records to corporation counsel Mike Fugle “for perusal.”

In his December 4 request to Pfeifer, Walker wrote that the practice was supposed to have ended two years ago.

“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. “… [H]owever, there is a remedy the court can provide because the county’s long-standing process in fulfilling open records requests, I believe, violated 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.”

Pfeifer’s letter

In her letter, Pfeifer said she understood Walker’s frustration but that she had no power to open such an inquiry. 

“However, the legislature has decided not to prescribe a method to seek relief for violations of open records law that occur on a systemic level,” Pfeifer wrote on December 13. “[State statute] prescribes the enforcement and penalties for violations of open records law. Specifically, [the statute] states, in part, ‘[i]f an authority withholds a record or a part of a record or delays granting access to a record or part of a record after a written request for disclosure is made, the requester may pursue either, or both, of the alternatives under [the law].’”

Those alternatives lay out paths that denial of a records request can be challenged, but notably, Pfeifer wrote, the law does not contain any criminal penalties for violating the open records law, though in some cases charges could be brought for misconduct in public office.

Most important, though, Pfeifer wrote, the law gives her no authority to challenge the broad practices of answering open records requests, only to pursue individual violations.

“Whether the practice in Oneida County for Corporation Counsel Michael Fugle to review every record prior to its release is best practice, is not for me to decide,” she wrote. “I do not have the authority to tell the county, or its officials, how to comply with the law. I only have the authority to respond to violations of the law.”

Even then, Pfeifer wrote, the law limits her authority to responding only in instances where there was a request for records and the authority either withheld a record, withheld part of a record, or delayed granting access to a record or part of a record after a written request for disclosure was made. 

“Nowhere in Wis. Ch. 19 [the open records law] does the legislature provide a method to seek relief for systematic violations of open records law,” she wrote.

But that’s not to say there’s no concern, Pfeifer wrote.

“I’ll agree there appears to be a gap in the legislation, in that it fails to address instances where an authority routinely and unduly delays the release of records resulting in repeated violations,” she wrote. “And absent new legislation, the only method of relief currently available is to seek a mandamus action for each violation.”

Challenging a broad policy by targeting each violation that occurs as a result of that policy would simply not be good public policy in and of itself, Pfeifer wrote.

“With that being said, because a voluntary release of records renders the mandamus action moot, I think we can both agree that filing a writ of mandamus for every technical violation of open records law, while permissible, may not be the most effective use of taxpayer money given that my primary role is to prosecute crimes in an effort to help keep our community safe,” she wrote.

Nonetheless, Pfeifer concluded, she would consider and review each request for action as she received them.

After receiving the letter, Walker agreed with Pfeifer that such an approach would not be in the taxpayers’ interest, and he said her insights led him to approach Holewinski, Fried, and Swearingen about revisiting the county code and tackling state legislation, respectively.

“I want to thank district attorney Pfeifer for seriously considering this matter and pointing to a gap in the law in failing to address broad policies that lead to repeated violations by following them,” Walker said. 

Holewinski, Swearingen letters

In his letter to Holewinski and Fried, Walker asked that the administration committee review the code and enact an amendment to specifically prohibit the practice.

Walker said under the previous code provisions, prior to its revision two years ago, any record under request received by county officials had to be sent to the corporation counsel’s office for review if there was a question about release or redaction. It also required the corporation counsel to sign off on release.

“Even that was clearly illegal, but it had turned into a situation where all records were sent to counsel, whether there was a question about release or not,” Walker wrote. “In the revisions made two years ago, the code was changed to make the review by corporation counsel voluntary and at the discretion of the records’ custodian.”

However, Walker wrote, the actual practice of routing the records to counsel has obviously not changed.

In some cases, especially with elected supervisors, there are legal reasons why the corporation counsel should not be reviewing the records, Walker wrote.

“As I wrote in my letter to district attorney Pfeifer, 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, individual supervisors are not automatically the corporation counsel’s client, and, when that is the case, there is no attorney-client privilege. Most important, 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, Walker wrote, 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.

As he did in his letter to Pfeifer, Walker cited a 1983 attorney general’s opinion involving Kenosha County (72 Wis. Op. Atty Gen.), 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.

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

In other words, Walker wrote, 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, 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,” he 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 individual records. Only then can potential conflicts, and the perceptions of conflicts, be avoided.”

In his letter to Swearingen, Walker made the same arguments but called for tough violations for systemic violations of the law, including criminal penalties. Systemic violations are policies that by design frustrate both the spirit and the record of the public records law, Walker said, leading to ongoing and repeated violations of the law.

Systemic violations are nothing new, Walker wrote to Swearingen. 

“In 2019, systemic violations of the public records law led to a former press secretary for the mayor of Atlanta being criminally charged and convicted for violating the public records law,” Walker wrote. “In 2017, the ACLU sued the Los Angeles Police Department for ongoing systemic violations of the public records law.”

Systemic violations — or organized attempts that allow officials to hide behind policy veils that are actually designed to break the law — are the new preference for getting around transparency laws, Walker wrote.

“I ask that the legislature make it a crime to maintain policies or local codes after a finding by the district attorney or the attorney general that the policy systemically violates the law,” Walker wrote.

Under the proposed legislation, Walker said district attorneys and the attorney general would be empowered to conduct inquires into such policies after formal complaints are made, and to make determinations based on those findings of fact.

Walker requested a meeting with Swearingen to consider how to pursue such legislation and to rally support behind the idea.

“This has gone on for far too long,” Walker said. “Those who are found to deliberately and purposely engage in systemic violations of the open records law should be held criminally accountable,” Walker said. “And the penalties should be severe because transparency and free speech are the the cornerstones of democratic government.”

Richard Moore may be reached at richardd3d.substack.com.