River News: Our View

This is Sunshine Week — a week to celebrate or bemoan the state of open government in America — and as usual we present our readers with our annual grades for local officials.

As readers can see, there are a bunch of truly responsive government officials, and there are also more than a few who disdain transparency and embrace secrecy. That the latter group still exists in this day and age is dispiriting.

Hopefully, the Trump administration’s commitment to openness and free speech will truly usher in a new golden era for the First Amendment. Already the president has signed an executive order prohibiting federal officials from censoring or even pressuring other actors to censor. This week he knocked down more barriers to truly transparent government by releasing the JFK assassination files.

Whether there is anything interesting in those files is beside the point; the people have a right to know what their government has discovered, and, if it’s nothing, so be it.

In 2025, resistance to openness continues at all levels of government, and so vigilance is required. This year in Wisconsin the state legislature passed a horrendous law that allows law enforcement to charge certain requesters for video camera redactions. It’s actually not the charge so much — assuming they are not excessive — as two other parts of the bill that are damning.

First, the law separates those who request records into two distinct groups — those who would not use the records for “financial gain,” and those who would use the records for financial gain. The former group is exempt from the redaction fee; the latter is not after making a certain number of requests.

Obviously this targets media and newspapers and for profit journalists. But it gets even worse — within the media category, so-called nonprofit journalism outlets could get a pass while private-sector companies would get nailed for the redaction charges.

Second, if someone uses a redacted video cam for profit that they requested without paying the charge, there is a $10,000 fine.

Never mind that the previous open records law explicitly stated that a requester’s intent or motive in seeking the records cannot be considered. Now it is, and it is to make those who use it to produce for-profit news pay.

Second, the act flips the intent of the open records law on its head. The whole point of the law is to hold government officials accountable. Now the citizenry is going to be held accountable for what they request instead.

Pitifully, there’s almost never any serious penalty when an official breaks open government laws. But now lawmakers have decided they want to make their constituents pay dearly when they break a law about requesting records.

This bill, by the way, was a bipartisan nightmare, with both Republicans and Democrats embracing it. Brain-dead Republicans don’t realize, but this is a boon to left-wing nonprofit journalists.

Rather than constantly beating the open government laws to death, it’s about time to move in the other direction. This year, we thought we would help lawmakers by offering a few common sense reforms.

First, how about an Ethics and Open Records Board to provide oversight and accountability? When the open government laws were overhauled in the early 1980s, that critical piece of reform was proposed but deleted from the bill. 

For average citizens who do not have the time or money to contest records denials or other open government violations by government agencies and officials, this is a crucial reform. Among other things, the board would be able to review denial of access to a record, especially in an age when most district attorneys simply will not seriously prosecute transparency violations, and requesters are compelled to pursue expensive and burdensome litigation if they want their records.

To further those goals, state law should establish an administrative appeals process that must be responded to within a limited amount of time prior to filing litigation that could review and overturn records denials, as well as review proposed costs for fulfilling records requests, among other things.

The membership of the board should be split between those appointed by elected officials — the governor, the attorney general, the Assembly, the Senate.

Second, put the Legislature under the records retention law. We keep asking for this but achieving it will be as easy as finding a pot of gold at the end of a rainbow. Still, this is the biggest no-brainer of all. As reported previously, Democratic state Sen. Chris Larson (D-Milwaukee) keeps circulating a bill to end the Legislature’s exemption of itself from the state’s open records retention law. It goes nowhere; it should be enacted.

Third, put an end to location and other excessive fees. Under the law, Wisconsin officials can’t charge copying fees greater than their actual cost, but there’s a loophole (the charge can be higher “if established by law”) and the statute is often ignored anyway, while authorities sometimes charge exorbitant fees for simply locating public records. 

In the first instance, the statutory loophole should be eliminated, and citizens should be able to administratively appeal excessive fees. As the DOJ recommends, authorities should annually evaluate their copying costs, based on the actual costs of a copy machine or contract, and the actual cost of paper. Those itemized costs should be publicly posted as a per page cost of copying. 

As for location costs, how about doing away with them completely? After all, location costs are much lower in the digital age than they were years ago when paper files had to be physically searched. These days location times are minimal, and, in any case, should be seen as a cost of doing the people’s work, already paid for as a core function of government by taxpayers.

Fourth, make bill drafts and internal legislative investigations open to the public. State statutes should be amended to make clear that legislative drafting files are public records from the very moment they are created — or at the least from the very moment a bill is formally introduced — and that no attorney-client privilege can be claimed between bill drafters and lawmakers. 

State law should also require certain best practices for those drafting files. Among other things, the law should mandate the inclusion of all drafters’ notes and make clear they do not fall within the open records exemptions for document drafts. After all, it is a drafting file. Emails, legal opinions, constitutional assessments, communications with lobbyists and special interest groups pertaining to the proposed legislation must be open, and, as in the past, drafters should be required to note if “the person who requested the draft is different from the person for whom the request is to be drafted. If the person who requested the draft is a lobbyist, note the organization that the lobbyist represents.”

What’s more, again as in the past, drafters should be required to “place any written drafting instructions received from or on behalf of the requester and a description of any oral drafting instructions provided by or on behalf of the requester” in the file, while questions about a bill’s constitutionality should be memorialized in a written memorandum or drafter’s note.

Fifth, convene a stakeholders’ group to reform the open government laws. This idea has been floated time and time again: A diverse stakeholders group needs to be established to comprehensively revisit the open government laws and update them. 

Former Gov. Scott Walker promoted the idea during his first campaign for governor but never followed through. In 2015, then attorney general Brad Schimel hosted an open-government summit to address the law’s inadequacies, acknowledging that many in the public and media viewed the state’s open meetings and public records laws as outdated. 

Such a gathering could hash out and resolve disagreements, and even lead to new reform ideas.

Finally, what about amending the state constitution to include a “right to know” provision. That’s exactly what Florida did a long time ago. The Florida state constitution gives “every person the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.”

The provision applies to the legislative, executive, and judicial branches of government and to every agency or department created by the three branches, as well as to counties, municipalities, and districts; and to each constitutional officer, board, and commission, or entity created pursuant to law or the constitution.

Likewise, all meetings of any public body of the executive branch or of any public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business is to be transacted or discussed, must be open, and meetings of the Legislature must be open and noticed.

The Florida constitution allows for exemptions but those must be passed by a two-thirds vote of each house of the Legislature and signed into law, “provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law.”

It’s time for some courageous lawmakers to propose such a constitutional amendment for Wisconsin. The sooner, the better.