County board nixes attorney language in records requests

The Oneida County board of supervisors unanimously amended the public records provisions of the county code Tuesday, striking language that injected the county corporation counsel into the process of responding to public records requests.

Specifically, the code directs records custodians — typically the county clerk, various agency heads, and individual elected officials — to follow any applicable state and federal statutes in responding to open records requests.

But the code also contained a sentence that does not appear in state statutes: “The legal custodian may seek the assistance of the county corporation counsel in responding to any request for public records.”

The board deleted that sentence this week because, as county board chairman Scott Holewinski explained, it gave the impression that custodians —specifically individual county board supervisors — should seek the advice of counsel before releasing records. State law in fact gives records custodians full power to make all decisions, including redactions, in responding to requests.

“The custodian of the record has the option to take it to corporation counsel or whoever they want to,” Holewinski said. “They [the record custodians] make the decision but, the way it’s written, it implies you should take it to the corporation counsel and that’s where the problem is.”

The issue surfaced years ago when the county code required all records under request to be sent to the corporation counsel’s office for review, if there was a question about the release or redaction of any information in the record.

Practically speaking, that requirement resulted in a de facto policy of routing all requested records to the corporation counsel for review, whether questions about release existed or not, resulting in countless delays.

Several years ago, as Holewinski and supervisor Billy Fried mentioned this week, the county amended its public records provisions, reducing four pages to a few paragraphs and striking the review requirement by the corporation counsel.

However, likely because the code retained language that custodians could still seek counsel’s advice, the policy of automatically routing records to the corporation counsel’s office remained intact. 

That became evident after The Times issued an open records request to supervisor Tony Rio last year. Rio asked the county’s information technology office for help in accessing the records, but the IT staff automatically sent the records to the corporation counsel’s office before Rio was aware of it.

In a December letter to Holewinski, after it became apparent that records requests were still subject to automatic review, Times publisher Gregg Walker asked the county to forbid individual supervisors from seeking advice from the counsel except in certain situations when the supervisor was clearly a client acting in an institutional role.

The county did not go that far but did remove language that specifically involved the corporation counsel in the records release process.

During deliberation on Tuesday, Rio acknowledged that the records were sent to counsel without his knowledge. He urged the committee to keep the current language, however, but add that seeking legal advice was up to the custodian’s discretion.

Rio said the current language should be retained because it could be misinterpreted as a prohibition on seeking the counsel’s advice.

“I guess there’s always a possibility that if somebody is the target of a request, that the person requesting those records can say that, because the ordinance does not specifically say so, you have no right to put it before corporate counsel,” Rio said. “What I would like to see is this, leave this language in, but with the addition of ‘at the custodian’s discretion.’ I’d like to leave it up to the custodian to be able to say I’m going to have the corporation counsel look at this before I send it, as opposed to what seems to have been, in my situation and no offense to anybody, but where it went to corporate counsel first before I ever saw it. I didn’t feel like I had much of a discretion as to whether it went to corporate counsel.”

Holewinski reiterated that the state statutes empowers custodians to make all decisions, including whether to seek advice.

The removal of the sentence was passed unanimously.

Inappropriate

In his December letter, Walker asserted that having all open records requests routed to the county corporation counsel for review was “highly inappropriate” for a number of reasons.

“For one thing, it creates unacceptable backlogs while the records are reviewed,” Walker wrote. “For another, it creates potential and actual conflicts of interest in cases where the custodian of the records is not the client of the corporation counsel. Further, as a practical matter, it effectively makes the corporation counsel the co-custodian of all records, which does not comply with state law.”

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

“As I wrote in the December 4 letter, the corporation counsel represents the institutional interests of the county, not the interests of individual supervisors or of elected officials such as the sheriff,” he wrote. “As such, individual supervisors are not automatically the corporation counsel’s client. In those cases 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.”

Walker cited a 1983 attorney general’s opinion involving Kenosha County (72 Wis. Op. Atty Gen.), in which the attorney general pointed out the reality that conflicts of interest may exist between the corporation counsel’s position and that of elected supervisors.

“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 an individual elected official.

“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.

At Tuesday’s meeting, Fried, who is the chairman of the administration committee that forwarded the resolution to the county board, said he believed removing the sentence was in the public interest.

“I believe the reason that we took this out was to remove any complications of hindering any transparency or timely response to open records requests,” Fried said. “Even for myself, it’s always been complicated in my time as an elected official on how to work open records. Prior to this, there had been a very lengthy ordinance in place, which was taken out. So this is to continue to just clean it up, show our constituents that we are transparent and that we’ll work to be timely.”

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