Today begins National Sunshine Week, where transparency advocates nationwide join in celebrating our rich tradition of open government. Sponsored by the News Leaders Association, this week is the 16 annual Sunshine Week. All week long, the Wisconsin Transparency Project will be sharing stories about successes and improvements to the cause of promoting an informed electorate.
The Wisconsin Supreme Court has been unusually active in transparency cases lately, so let's kick off the week looking at what's going on in the East Wing (second floor) of the Wisconsin Capitol!
#1 - The Court ruled recently in a sexually violent person commitment case that the defendant has the right to access the Department of Corrections' database of information related to the recidivism rates of people convicted of sex crimes in order to analyze whether that Wisconsin-specific database may provide a more accurate basis for calculating an individual's likelihood of recidivism than broader databases used by the prosecutors. While not directly an Open Records Law case, allowing people to see databases the government uses when estimating the likelihood of recidivism is a boon for transparency.
#2 - The Court agreed to hear the Friends of Frame Park case. In that case, the Court of Appeals ruled that the current test for whether a successful plaintiff in an Open Records case was entitled to attorney fees was inappropriate in situations where the custodian turns over records after being sued but before the court rules on whether the initial denial was valid. The Court of Appeals properly recognized that custodians should not be allowed to game the system and avoid a ruling that they violated the law (and potentially avoid having to pay damages and attorney fees despite having violated the law), and so decided that where custodians turned over records after being sued, the court must still determine whether an initial denial was valid. We will be watching this case closely and may file an amicus brief.
#3 - The Court also agreed to hear a case involving the fees *any* health care provider can charge for providing access to medical records. State law places a cap on how much providers can charge for providing access to people's own medical records. Some providers evaded that limit by contracting with third-party providers, who then charged fees in excess of those caps. The Court of Appeals ruled that such evasion was unlawful and that because the records were the providers’ records, they could not use a third party to charge higher fees than were allowed.