Your Right to Know Mixed bag on openness at Supreme Court

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By April Barker 

As befits a year in which anything, it seems, can happen, the Wisconsin Supreme Court's public records docket this term was marked by atypical cases.

In Voces de la Frontera v. Clarke, the Milwaukee County Sheriff's Department redacted information from immigration detainer forms provided in response to public records requests, asserting that a federal immigration regulation required the redactions. A Milwaukee County judge and the Wisconsin Court of Appeals concluded that federal law did not require the redactions, but the Supreme Court disagreed.

OPEN government advocates were disappointed that the Supreme Court's opinion focused almost exclusively on this interpretation of federal law, not the presumptions of openness enshrined in Wisconsin statutes. 

In Teague v. Schimel, the court looked at whether the Wisconsin Department of Justice violated individuals' rights by releasing background check materials that sometimes reflected the criminal records of other individuals with the same names and birthdates or that had been used as aliases. Those besmirched by the offenses of others argued that lives were negatively affected as a result.

The Supreme Court agreed that Teague had reason to complain that his cousin's record was released as his. Openness advocates anticipate the ruling will not have a broad impact, because the issues it raised had less to do with transparency in government than allegations that government failed to correct defects in its process.

IN Democratic Party of Wisconsin v. Wisconsin Department of Justice, the court ruled that the Department of Justice does not have to release videos of training sessions that it argued would give away sensitive information about law enforcement techniques. 

This decision especially disappointed open government advocates because of majority author Justice Rebecca Bradley's suggestion that the partisan motivation of the requester could be taken into account, contrary to how the law has previously been interpreted. Already, this argument has been invoked in other cases. 

In Krueger v. Appleton Area School District, the court determined that a school committee formed to review course materials was a "governmental body" subject to the Wisconsin open meetings law, rejecting arguments to the contrary. It was a major win for openness and accountability.

AND THEN court took a big step backward when it decided to close its own administrative rule meetings, which had previously been public. This result was unexpected and, to open government advocates, dismaying.

In its upcoming term, the court has agreed to hear Madison Teachers Union v. Scott, which stems from a union's request for state records regarding which members had voted during a union recertification vote. The request was denied on grounds that the union would coerce and intimidate employees during the voting process.

The state Department of Justice cited Justice Bradley's opinion regarding a requester's motivation in a brief defending this denial. 

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a group dedicated to open government. April Barker is the group's co-vice president. The group filed friend of the court briefs in the cases involving Sheriff Clarke and the Appleton Area School District.

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