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  • Writer's pictureTom Kamenick

Common Transparency Red Flags

Learn common warning signs of open government law violations

America has a rich history of government transparency, dating all the way back to the birth of our nation. The Declaration of Independence contains a list of grievances against the King, justifying their revolution, including this gem:

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

Fitted elegantly into this sentence are complaints about access to government records, access to government meetings, and an allegation that all this secrecy is designed to muscle colonists into submission.

Wisconsin’s Open Records and Meetings Laws continue that tradition. Nearly every government document is open to public inspection, and nearly every meeting of every group formed to do governmental work must be held open to public attendance.

Unfortunately, those laws are woefully underenforced. The District Attorneys of the 72 counties and the state's Attorney General are all empowered to enforce the laws, but they rarely do so. That leaves individuals and watchful organizations to carry the load.

But too many people are unaware of their rights under the records and meetings laws. That leaves them vulnerable to being “fatigued into compliance” when government officials put unnecessary roadblocks in their way. People are told things that aren’t true, given evasive or incomplete answers, or even just ignored in hopes that they’ll go away and stop bothering the good folks at city hall.

If you’re making record requests or trying to attend government meetings, here’s a (sadly incomplete) list of questionable tactics you should watch out for.

Open Records Law

Delay. There is no strict deadline for producing records, but it’s supposed to be a priority. Many simple requests can be completed the same day. The Attorney General recommends no longer than 10 days for most requests. Very few requests should ever take more than a month.

Illegal fees. Copy fees should be calculated based on the cost of paper and a per-page charge for use of a copier in a copier lease or similar formula (the DOJ calculates their cost at about a penny a page). Challenge a custodian to show you that calculation if they ask $0.25/page.

Location fees are often inflated to discourage requests. Don’t accept their first number, look for ways to shorten the search time or use a lower-paid employee.

I’ve started to see custodians trying to charge for “reviewing” records. That’s illegal. Once the responsive records are found, they can’t charge to review them, because the only purpose of reviewing is to determine what records to redact or not turn over, and they can’t charge for that.

Illegal demands. They cannot demand that you identify yourself, explain why you want the records, come in to view the records (they have to copy and mail to you if you ask), or accept copies in paper format if you want them electronically.

Spurious denials. The universe of bad excuses I’ve seen for denials could fill a book. If they ever claim the “balancing test” requires redaction or withholding records, there’s a good chance their either making it up or at least pushing the envelope in unacceptable ways.

Open Meetings Law

Vague notices. Before a meeting, they have to put out a public notice explaining what they’re going to talk about or do at the meeting. If they’re using such vague language that you can’t tell what they’re going to talk about, that’s a problem.

Illegal closed sessions. Closed sessions are permissible in very limited circumstances. When they go into closed session they must explain why, and merely quoting a statute isn’t good enough. Once in closed session, they must limit the discussion to that topic.

Walking quorums. Officials will try to get around public meeting requirements by holding a series of smaller meetings, each less than a quorum, to reach agreement ahead of time. They can’t do that, even via email or phone.

“Not a governmental body”. Another common tactic is calling a governmental body just a “work group” and claiming it doesn’t have to follow the law. Don’t let them get away with it! If the group is doing government work and was formed by some higher authority (rather than being spontaneously created by its own members), it’s subject to the law regardless what they call it.

If you run into any of these problems, you should reach out for legal advice. Our laws are only as good as the people willing to enforce them. The Wisconsin Transparency Project was formed for the sole purpose of handling these issues. But there are other law firms that do transparency work as well: Pines Bach, Schott, Bublitz & Engel, Godfrey & Kahn, and the Wisconsin Institute for Law & Liberty are good places to start.

We’re not a jealous crew, so give any of us a call!

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