There’s good news and bad news in a recent Wisconsin Court of Appeals decision upholding an open records judgment related to the ridiculous and ham-handed investigation into alleged 2020 election fraud headed by former Supreme Court Justice Michael Gableman.

On the good news side, the appellate court upheld a lower court ruling that the state of Wisconsin must pay $241,000 in legal fees because various officials — including Gableman and Assembly Speaker Robin Vos — flouted the public records law by failing to turn over legally requested information in a timely manner.

The bad news? There’s plenty. First, taxpayers — not the offending political characters — have to pony up the $241,000. And taxpayers clearly did nothing wrong.

Moreover, this case illustrates a near-fatal flaw in the state of Wisconsin’s otherwise exemplary Open Records Law. The statute is among the nation’s best, setting forth that Wisconsin considers openness the default position and holding that records requesters who are denied documents illegally may recover court costs and lawyers’ fees.

But think about that number again. Who has $241,000 to put on the line in an attempt to force the government to follow its own laws?

In this particular case, an established liberal organization called American Oversight fought to make the government abide by the law.

This same law, though, is supposed to empower every citizen to approach any level of government — the school board, the city council — and request access to public records, which then must be turned over except in relatively rare instances that fall within narrowly defined exemptions. That sounds better than it sometimes works in practice, as the Gableman case shows.

If authorities decide to be difficult and stonewall a records request, the citizen can hire a lawyer and go to court like American Oversight. And, in fairly short order, the citizen could wind up owing a lot of money.

That potential outcome is not a secret. Officials at all levels of government are well aware that prohibitive costs can lead to would-be records requesters relinquishing their rights rather than risking high legal fees. Any time that happens — and it does happen — a good law is turned upside down in a way that encourages public officials to just say no.

In the past, news media organizations frequently stood in for citizens and went up against public authorities bent on hiding secrets. That can cost a lot of money and, the state of the news business being what it is these days, fewer news organizations are willing to take on this risk. As a result, citizens’ rights to information are diminished.

An alternative does exist in the law. When records are refused, the law says requesters can turn to county district attorneys or the Wisconsin Attorney General’s Office. But again, in practice, that’s a weak option. Prosecutors are busy dealing with burglars and rapists and killers. Taking on their fellow government officials over a stack of paper is low on the priority list. It’s rare for a district attorney anywhere in the state to haul a city, county or state records custodian in front of a judge to enforce the law.

So too many officials believe they can get away with withholding public records. Or they can rest easy in the knowledge it will be taxpayers, not them, stuck with the bill even if they lose a challenge.

The Legislature could fix this, with a reform that sharpens enforcement teeth in the law. Instead, it’s the sound of silence that you hear coming from the Capitol, and every other government building.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Bill Barth is the former editor of the Beloit Daily News, where a version of this column originally appeared.

Your Right to Know: How cost is used to deny access to records is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Shereen Siewert, publisher of the Wausau Pilot and Review, has been breathing easier these days. In September, a Wisconsin appeals court upheld a lower court’s dismissal of state Sen. Cory Tomczyk’s defamation lawsuit against Siewert, the nonprofit newsroom she founded in 2017 and one of its reporters.

The ruling, which Tomczyk did not appeal, ended a three-year legal nightmare that began after the Pilot and Review reported that Tomczyk, before joining the Legislature, “was widely overheard” calling a 13-year-old boy a “fag” at a Marathon County board meeting about a surprisingly contentious resolution affirming community inclusivity. Tomczyk denied using the slur and accused the news outlet of having “smeared” his reputation.

Although the Pilot and Review prevailed, the lawsuit took a severe financial and emotional toll, including some $200,000 in legal bills, lost donors and sponsors and the trauma of fearing bankruptcy while Siewert was caring for her dying sister and mother.

“I had serious conversations with my son about selling him my home if I couldn’t pay my legal bills,” says Siewert, noting that she was personally named in the suit. “I woke up in a panic thinking — I’m 56 years old and am about to lose everything.” 

The case drives home the need for what are sometimes called anti-SLAPP laws; the acronym stands for strategic lawsuits against public participation. While 34 states and the District of Columbia have enacted such laws to protect media and individuals from frivolous defamation lawsuits, Wisconsin has not. 

“We are starkly aware that any reporter and any news organization in Wisconsin can be sued at any time for anything,” Siewert says. “Every time we write a story, we’re putting our livelihood on the line.”

Bills introduced last year by Democrats would have allowed Wisconsin judges to quickly dismiss SLAPP suits and require plaintiffs to pay the defendants’ legal fees. The state’s GOP-controlled Legislature did not even give them a hearing. But 2025 offers lawmakers a fresh opportunity to pass anti-SLAPP legislation. 

Under the current standard set for defamation of public figures, a news outlet must show “actual malice” in publishing the information in question — either knowing it to be false or with “reckless disregard” as to its veracity. The Pilot and Review argued, and both a trial court judge and three-member appeals court panel unanimously agreed, that Tomczyk, as a local businessman who publicly opposed a resolution to declare Wausau a “Community for All,” qualified as a public figure and had failed to prove “actual malice.” 

Indeed, the record showed that the Pilot and Review took appropriate steps to affirm the accuracy of its reporting. Three people swore they heard him use the slur, which he acknowledged using on other occasions. (Tomczyk did not respond to requests for comment for this column.)

The two lead Democrats behind last year’s anti-SLAPP bills — Sen. Melissa Agard of Madison and Rep. Jimmy Anderson of Fitchburg — aren’t returning this session. 

But Rep. Alex Joers, D-Middleton, expects his colleagues will revive the legislation in 2025 and hopes slimmer partisan margins will encourage more compromise than in the past. The Assembly’s unanimous passage last year of a bill to protect student media from censorship showed Republicans and Democrats can find common ground on press protections. (The bill, however, died in the Senate.)

The benefits of an anti-SLAPP law would extend beyond newsrooms. Joers, who worked for Agard before joining the Legislature, recalled Agard researching the issue after learning that companies were suing people who left negative reviews on Yelp. Anti-SLAPP laws in other states — including Republican-led Texas and Tennessee — have protected residents from expensive lawsuits. 

“This could happen to anybody,” Joers said.

It should happen to no one.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Council member Jim Malewitz is managing editor of Wisconsin Watch.

Your Right to Know: Protect the press against frivolous lawsuits is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

The other day, in my role as an advocate for open government, I heard from a Wisconsin resident who has waited more than five months for records he requested from a local law enforcement agency. He has gently prodded the agency several times, asking, “How much more time is my request going to take?” More than three months have passed since these queries have yielded a response.

Such long, frustrating wait times are not uncommon. Wisconsin’s Open Records Law allows any person to obtain any document in the possession of state and local government officials, with limited exceptions. But, unlike in some other states, there is no set time limit. Rather, the law simply directs record custodians to act “as soon as practicable and without delay.” 

What does that mean? Good question.

The state Justice Department has said that “10 working days is a reasonable time for an authority to respond” to simple records requests. But this is not binding advice. Moreover, no court has ever ruled that a particular wait time was excessive.

I tell people experiencing long wait times to practice their “Ps”: Be polite. Be persistent. And be pragmatic — offer to clarify or refine your request to make it more manageable. Sometimes, this helps move things along. Other times, it seems to make no difference.

That’s where Tom Kamenick comes in. He is the founder and president of the Wisconsin Transparency Project, the state’s only law firm devoted entirely to open government litigation. Since 2019, Kamenick has filed seven lawsuits alleging illegal delays in the processing of open records requests. He has lost only one case — in which the records were provided but had ended up in the requester’s spam folder. 

His other six cases ended in settlements favorable to the requestors: Records were provided, legal costs were covered and, in at least one case, the custodian apologized. The problem is that these settlement wins do not set a legal precedent that can be cited by others, although they do add credibility to threats of legal action.

Last year, Kamenick sued the Madison Police Department on my behalf after it told me to expect a wait time of 14 months to obtain records related to police discipline. The office hired additional staff and authorized overtime to reduce its backlog. Last month, Kamenick sued the Racine County Sheriff’s Department on behalf of a local resident, Mitchell Berman, over its long delays in producing records including video footage. “Delays like this are all too common,” Kamenick noted in a statement. 

Custodians often contend they lack the staff and resources to handle requests more promptly. Kamenick’s response is to say it isn’t a question of resources but priorities. One school district he sued had a $600 million budget and assigned a single staff position devoted to records requests, then allowed that position to go unfilled.  

Indeed, the records law expressly states that handling records requests “is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information.” That means it should be more of a priority.

Eventually the courts should weigh in on this, in a precedent-setting case. The problem also cries out for a legislative solution. A revised law could still say “as soon as practicable and without delay,” but also set a time limit of, say, 30 days, for records to be provided, absent extraordinary circumstances. Perhaps the state could provide additional funding or guidance to help make this doable —  certainly there are worse ways it could spend its $4.6 billion budget surplus.

There is an old saying that justice delayed is justice denied; the same is true for records requests. If you don’t get the records until you can hardly remember what you wanted them for, the law is not working as intended. 

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Bill Lueders, a writer in Madison and editor-at-large of The Progressive, is the group’s president.

Your Right to Know: Long waits undercut records law is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

In 2022, the Wisconsin Freedom of Information Council created a designated fund to help cover legal costs associated with fighting to pry records into the public domain. Called simply the WFOIC Legal Fund, it has never had more than $4,000 in its coffers. But the council, of which I am a member, has put what money that is there to good use.

The council last year awarded a grant to The Badger Project, which together with a watchdog group known as the Invisible Institute is suing the state Department of Justice for refusing to release records about police officers. That case remains pending.

The Legal Fund also helped cover some expenses in journalist Daniel Libit’s suit against the University of Wisconsin-Madison and UW Foundation over access to records about publicity deals for student athletes. A Dane County circuit judge dismissed the lawsuit in September on technical grounds, and Libit did not appeal. But the suit ultimately prompted disclosure of the requested information.

And the council in 2022 provided funds to an individual who successfully sued the La Crosse Police Department and the Holmen Police Department for records related to criminal investigations.

The council’s goal in establishing this fund, which began with a $1,700 contribution from a citizens group grateful for the council’s guidance, is to help individuals and journalists who are confronting improper government secrecy. We are focused on funding lawsuits that are likely to succeed, that could help clarify and strengthen the public’s right of access to government meetings or records or that involve clear or egregious violations of law. We also consider the financial need of the applicant.

There are some strings attached. Cases must involve Wisconsin’s public records or open meetings laws, and the requester must be represented by an attorney with a valid license to practice law in the state. Expenses eligible for grant funding include fees for filing, process service, depositions and expert witnesses. At present, attorney’s fees are not covered, and in cases where the plaintiff prevails and wins recovery of litigation costs, the money contributed by the council must be returned.

Down the line, the council hopes the fund can be substantial enough to cover at least some attorney fees in cases that do not lead to successful outcomes or for actions in which no financial restitution is possible, such as letters from attorneys contesting denials. We’re not there yet.

The Legal Fund is a new dimension to the council’s existing efforts to advocate for access to government information. In addition to public education and legislative engagement, we have long been a voice for the public’s right to know in Wisconsin courts by filing friend-of-the-court briefs. 

This year, the council joined the Milwaukee Journal Sentinel and Wisconsin Institute for Law & Liberty in a brief in Wisconsin Voter Alliance v. Secord at the Wisconsin Supreme Court involving the public records law. The council also joined the Wisconsin Newspaper Association, Wisconsin Broadcasters Association and the Society of Professional Journalists in a brief to the Wisconsin Court of Appeals in Oitzinger v. City of Marinette involving the open meetings law.

If you are interested in applying for a grant, visit wisfoic.org/legalfund. To contribute to the fund, visit wisfoic.org/donate.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Council Treasurer Jonathan Anderson is a former Wisconsin journalist and current Ph.D. candidate at the University of Minnesota.

Your Right to Know: A fund to fight government secrecy is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

On Tuesday, Sept. 17, the Sauk County Board voted to spend $40,500 to buy a sheriff’s department vehicle to replace one totaled in a July incident. The resolution printed on the agenda included details of the incident, the car dealer and a fiscal note explaining that the money would come from insurance accounts.

This display of transparency happened one week to the day after the same county board approved contracts to sell the county-owned nursing home to a private entity. That agenda stated the board would meet in closed session to discuss the sale. It did not name the buyer or include the sale price. While the buyer was disclosed in the 45-minute public discussion following the closed session, the sale price was not. The $5.1 million price was revealed the following day in an attachment to a press release. There was no fiscal note on the agenda. 

A note might have explained why the county accepted an offer $3.4 million less than the $8.5 million sought when it first marketed the nursing home, which has 48 residents. Nor did the county explain why the price was so much less than the $19 million value for which the county insures the nursing home. All these numbers are from records I obtained.

The December 2023 resolution that started the process included as a condition: “The potential buyer shall demonstrate a history of 5-star care ratings in the senior health care industry.” That was the county nursing home’s rating at the time. 

Medicare’s star system for rating nursing homes is based on regular inspections and citation history. Five-star is much above average, 4-star is above average, 3-star is average, 2-star is below average and 1-star is much below average. The buyer, Aria, operates three nursing homes in the north Milwaukee suburbs that currently have one- and two-star ratings. 

The five-star condition was interpreted by most as meaning that the county would seek a private buyer with a history of high-quality care similar to that provided by the county nursing home, which had a 5-star rating in December 2023. That was the county’s official public position concerning the sale, up until Sept. 10, when the board voted to approve the sale to Aria. In the Sept. 10 motion that passed, all of the conditions in the December resolution were superseded by the sale contract.  

Between December and September, the board held two closed-session meetings. The only information that came out of those meetings was that the county had chosen to negotiate with a single interested buyer, whose name was kept secret, though it leaked out in late July. A petition drive collected 1,300 signatures opposing the nursing home sale that were presented to the county.

After numerous citizens expressed dismay about Aria’s care rating in public comment on Sept. 10, the board met in closed session with an Aria representative, which was said to be reassuring. After the board came back into open session, one board supporter of the sale turned to the audience and said, “I really wish you could have all been here for the meeting.”

Yes. The audience — made of citizens and taxpayers and people with loved ones in the home — would also have liked to hear the presentation. That this was not allowed was typical of the entire process, in which the public was given less information about the sale of the home for 48 Sauk County residents than it was about replacing a damaged squad car.

Why is the state’s tradition of open government important? Just ask the citizens of Sauk County, who have been treated as though it isn’t.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Jeff Seering, a retired journalist, is a Sauk County resident.

Your Right to Know: Nursing home sale shows why transparency matters is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Last March, the Wisconsin Examiner asked the Black River Falls Police Department to search for emails regarding the death of a missing Indigenous man. The department said it would process the request but the news outlet would have to pay $4,400. That’s the amount the city’s IT vendor, Tech Pros, quoted to perform the search.

It was a dramatic illustration of a growing problem. More and more government agencies are using outside vendors to store their electronic records and relying on those vendors to do the searching when somebody makes a request for emails, bodycam videos, or other records. Such outsourcing is touted as a cost-saving measure, but it can make obtaining records prohibitively expensive, as the Examiner found. 

Government agencies typically pay vendors a set fee for storage, but there often is a separate charge for search and retrieval of archived files. Can a government authority in Wisconsin pass those vendor fees on to record requesters?

The Black River Falls Police Department thinks that it can. In response, the law firm I run, the Wisconsin Transparency Project, filed a lawsuit against the department on the Examiner’s behalf.

I don’t intend to dive into the weeds of the legal arguments of that case. Rather, the case highlights some of my serious concerns with the practice of hiring outside parties and then passing on those costs to records requesters.

Wisconsin’s open records law allows government custodians to charge only their “actual, necessary, and direct costs” to fulfill record requests. In other words, they are not allowed to profit from records requests. I would argue that this also means they cannot fob off their record-keeping responsibilities to somebody who does. 

The law itself says this rule remains in place for records “produced or collected by a person who is not an authority pursuant to a contract entered into by that person with an authority.” That raises several issues.

First, the fees quoted by an outside vendor are not a “direct” cost. They’re a cost being imposed (and even calculated or arbitrarily decided) by the vendor, not the government.

Second, is it really “necessary” to use such an expensive vendor? Can a government agency intentionally develop an arrangement that shifts additional and outrageous costs onto record requesters? 

Finally, is this an “actual” cost? It may be what the vendor is charging the government, but the vendor’s actual costs are likely far lower because the vendor is making a profit. The vendor is incentivized to charge an exorbitant amount, knowing its true customer (the government) won’t have to pay it.

Another problem with the use of outside vendors is compliance with record retention laws.  Government agencies are required to keep their records for a certain amount of time before disposing of them. Different agencies and categories of records are subject to different retention periods, but most records need to be kept at least seven years.

I’ve twice recently run into situations where outside vendors weren’t following those laws. In the first instance, emails produced by a vendor were missing all their images. Those images had been replaced by a placeholder question mark. In the second instance, the vendor was completely unable to produce emails that had been sent by the government agency more than a year prior.

When vendors mess up like this, any liability falls on the government agency for failing to keep records properly. That’s a big risk to take. Government officials should make sure their vendors are aware of retention laws and ideally agree to indemnify the government for any liability caused by their mistakes.

The use of outside vendors to store government records raises a host of potential problems. The better practice would be to keep records “in house,” or at the very least use a service that permits the government unfettered access and searching without the need to pay the vendor additional money.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Tom Kamenick, a council member, is the president and founder of the Wisconsin Transparency Project.

Your Right to Know: Using outside record vendors brings risks is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

You ask for a record from your local government, you get it. You want to attend a meeting of a public body, you can walk right in.

Much of the time, it’s that simple. Wisconsin’s open records law entitles citizens to most records regarding the affairs of government, and its open meetings law creates a default presumption that all governmental meetings are open. 

But what happens when things get complicated? Say your request for records is denied or delayed, or you are asked to pay exorbitant fees. What if you arrive at the meeting only to be told the discussion on the topic you’re interested in is closed?

Fortunately, Wisconsin citizens seeking to understand the open records and meetings laws have at their fingertips a valuable resource: the Wisconsin Department of Justice’s Public Records and Open Meetings compliance guides.

These guides have been maintained across the administrations of several Wisconsin attorneys general, updated every few years. In May, for the first time since 2019, the guides were updated again, under Attorney General Josh Kaul. 

That’s good news because the law as set down in statutes and case law has in some cases changed since 2019. So has the technology that government agencies use to keep records and store information. 

The guides for records and meetings — 99 and 50 pages, respectively — provide basic information, from what is a “record” to the definition of a “governmental body” subject to the open meetings law. They include citations to statutes and case law, as well as links to where readers can access the source documents for themselves.

But the guides go further. For example, the public records guide explains when records requests can be denied, whether and how people discussed in records must be notified before release, and special issues related to electronic records, fees and enforcement. 

The open meetings guide delves into how governmental entities must give notice of upcoming meetings, when and how they can go into closed session, and the requirement that meetings be accessible to members of the public. It also includes a verified open meetings complaint form that can be filed with the district attorney, which is the first step in seeking enforcement of an open meetings violation.

Do the guides answer every question? No. The laws are continually being amended by legislation and tested by litigation, and the courts have not sorted out every problem area. But the guides do serve to answer a lot of questions, and they assist the attorney general in his or her statutory duty to interpret these laws. 

Other resources are available on the department’s website, courtesy of its Office of Open Government. Under a unique feature of Wisconsin law, citizens can also seek advice from the AG’s office and most of the time receive a written reply. You can contact the office by phone, email or letter. 

Could the attorney general do more to strengthen these laws? Certainly. No attorney general has filed an enforcement case since approximately 2006, and it sometimes takes months or even years to get responses to requests for interpretation or enforcement.

That is why it is so valuable to have the public records and open meetings compliance guides, which discuss the laws and their interpretation in great detail. 

So before throwing up your hands when your request is denied or your meeting is closed, check out the compliance guides. They might just have the answers you’re looking for.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government. Christa Westerberg is the council’s vice president and a partner at the Pines Bach law firm in Madison.

Your Right to Know: Guides help public navigate openness laws is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

I never expected to become a real reporter. While the other students in my first journalism class could go out into the community to interview sources, my options were limited. As an inmate, the only people I could interview were other prisoners and the guards.

It was 2010, and I was a 28-year-old alcoholic with a crack habit serving a yearlong sentence in a Wisconsin county jail. I’d been convicted of burglary after breaking into a bar and walking out with a bottle of liquor. It was a felony, and it was right on time — the culmination of wrecked cars, lost jobs and alcohol-fueled arrests. When the judge sentenced me, he said I exemplified “a waste of a human life.” He wasn’t wrong.

During those first months behind bars, there was no sun, no night sky. I measured time by the opening and closing of the steel cell doors. But midway through my sentence, as is typical in many cases, the judge granted me the option to work or take classes during the day at a nearby university.

I took a janitorial job in the community, elated to be out of my cell. One morning as I vacuumed, I grabbed a Rolling Stone magazine from a coffee table. Out slipped a flier for a college journalism contest; winning entries would appear in the magazine. Only college students could enter.

I didn’t know anything about journalism, but I felt an odd sensation — an intuition — that I’d finally found something I didn’t even know I needed. That day, I enrolled in the university closest to the jail.

That’s how I found myself, weeks later, interviewing my correctional officer for a story in the student newspaper. We had never spoken with each other so mindfully or exactingly. This was someone who, at any other time, had absolute authority over me. Yet in that moment, while interviewing him, I felt a subtle and palpable shift of power.

I could sense him calculating what he wanted to say, leaving out words that might get him in trouble. I felt empowered to chase after those pregnant pauses, to seek out the truth and bring order to the world around me. The experience was liberating. It showed that even an inmate’s voice could resonate if facts and rigorous research backed up what he or she had to say.

After my release, I stayed in school, eventually earning a master’s degree in journalism. And I kept writing. Story by story, and with the help of patient editors, I learned how to report and write better, faster. I got sober. Finally, I landed a reporting internship, then a full-time job.

In the years since, I have been a reporter in California and returned home to take a reporting job with Wisconsin Watch — the place that offered me my first internship.

And then, last June, 13 years after I wrote my first article from a Wisconsin jail, I began covering the state’s prison system as a New York Times Local Investigations fellow. The fellowship program is designed to strengthen the power and reach of local journalism.

By then, I had a mounting stack of letters from men housed at Waupun Correctional Institution who had been confined to their cells for months without regular access to showers, fresh air, family visits and timely medical care. In August, guided by a team of editors that included Dean Baquet, a former executive editor of The Times, I broke the story that the state was locking down prisons because of staffing shortages.

In February, we revealed that the state knew for years it was losing guards faster than it could replace them. Then in June, I reported on the extraordinary arrests of nine prison employees, including a former warden, in connection with a string of inmate deaths.

Our latest article brought to light another fact: Nearly a third of the 60 staff physicians the corrections system has employed over the last decade have been disciplined by a state medical board for an error or a breach of ethics.

My past has put me in a unique position. As a reporter, I purposefully detach myself from my investigations to follow the truth, wherever it leads. I value independence. But, like anyone else, I have been shaped by my experiences. I know the smell of jailhouses and the ever-present hunger pangs prisoners feel. I know what it means to be denied fresh air for months. I’ve also seen the unexpected acts of kindness that happen behind bars.

My experiences inform who I talk to — and who talks to me — and how I approach my reporting. For better or worse, I am forever a member of this community. And that’s the very spirit of local journalism.

Mario Koran examined the Wisconsin Department of Corrections as part of The New York Times’s Local Investigations Fellowship in collaboration with Wisconsin Watch. This essay was written for Times Insider, which explains who Times reporters are and what they do and delivers behind-the-scenes insights into how their journalism comes together.

My unlikely path from jail to journalism is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

The bill moved with lightning speed. It was introduced last December, passed the state Senate in January and the Assembly in February, and was signed into law by Gov. Tony Evers in March. 2023 Wisconsin Act 253 allows police and corrections officials to charge some requesters of video and audio recordings for the cost of redaction — that is, blurring out certain information. 

Members of the media and others objected, noting that the cost of redactions can easily run into hundreds and even thousands of dollars, making them unaffordable. The ACLU of Wisconsin warned this “could allow law enforcement to shirk their obligation to be publicly accountable, and further erode the belief that police protect communities rather than only their own.”

Just prior to the state Assembly’s vote, lawmakers approved a bill amendment that exempted videos of police-involved shootings as well as requesters “directly involved in the event” captured on video. It also allowed up to 10 requests per year without redaction charges for those who stipulate in writing that they “will not use the audio or video content for financial gain.” The bill as amended passed the Assembly 94-3.

Problem solved? Not really. Questions were subsequently raised about what this language means. Does a request for six videos count as one request or six? If multiple parties ask for the same video, do they split the cost? 

But the gravest concern was over the bill’s reference to “financial gain.” Does this mean any media outlet that still manages to make money? It’s an important question because the new law says anyone who falsely denies being out for financial gain can be fined $10,000 per violation.

State Sen. Jesse James, the bill’s chief sponsor, seemed flummoxed when asked, in a WMTV report that aired March 1, whether it applied to news media. “I don’t have an answer for you,” James said. “We try to do our best to have the legislation 100% right, but that doesn’t always happen.” He later affirmed that journalists are not exempt.

The cold, hard reality of this interpretation was driven home last month when Alice Herman, a volunteer reporter for the nonprofit news outlet Tone Madison, requested video taken by UW-Madison police officers who shut down a student protest encampment on May 1. Herman was told there would be no exemption and threatened with a $10,000 fine if she signed the form disclaiming an interest in financial gain and then used it for Tone Madison.

UWPD spokesperson Marc Lovicott told me his department is “working through challenges” with the new law and hoping to receive guidance from the state’s Office of Open Government, part of the Department of Justice. “It’s a broadly worded law that’s really untested. We’re all trying to figure it out.” 

Lovicott noted that Tone Madison, like other news organizations, runs ads on its website, “so they’re technically taking money in. Is that financial gain?” He said redacting video footage over a period of several hours from the 30-plus officers at the scene, all equipped with body cameras, is “an exorbitant amount of work for our two-person records staff,” for which the department would like to recoup at least some of the associated costs.

Scott Gordon, editor-in-chief and publisher of Tone Madison, wrote a deeply researched article on the new law, which he said leaves “the door open to a broad interpretation that could ensnare all manner of requesters working in the public interest.”  

If media outlets and civic groups are priced out of obtaining police video, one of the primary reasons for spending millions of tax dollars to outfit officers with cameras will have been undermined. 

This bill, as written, should never have been passed and signed into law. It needs to be clarified, if not repealed. 

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government. Bill Lueders is the group’s president.

Your Right to Know: Redaction costs threaten police video access is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Imagine I sue a school district for refusing to provide copies of records. Do I have to prove I’m entitled to them, or does the district have to prove it can withhold them?

That’s a question the Wisconsin Freedom of Information Council, the Milwaukee Journal Sentinel and Wisconsin Institute for Law & Liberty have asked the Wisconsin Supreme Court to clarify, in a friend-of-the-court amicus brief filed on May 22.

This can be a complex topic, so let’s start with the basics. In court cases, one of the parties always has the “burden of proof” — the obligation to convince the court that its side is right. Most people are familiar with that concept in criminal cases. Every person is presumed innocent until proven guilty, and prosecutors have to prove their case “beyond a reasonable doubt” to convict a defendant.

In civil cases, plaintiffs have the burden to prove they are owed damages (or other relief) from defendants, but the burden is much lower — by the “greater weight” or preponderance of evidence. For example, if liability for a car crash depends on who ran the red light, the plaintiff  must prove it was more likely than not that the defendant ran the light.

Records cases are civil cases, but the burden is reversed from the normal civil case. The Open Records Law creates a presumption that government records are public, which means that government records custodians must prove their case in order to win, usually by establishing an applicable exception. For example, if they claim that releasing the records will put somebody in danger, they must prove the danger is reasonably likely to occur; they can’t engage in mere speculation. If they claim the record is an exempt “draft,” they must prove its creator kept it for personal use and didn’t circulate it.

At least, that’s what the vast majority of records cases have said. But a handful of cases have suggested the opposite — that the burden actually belongs with the plaintiff. 

That’s because what is sought in records cases is a “writ of mandamus.” This is a court document ordering a government official to perform a specific action, like compelling a local clerk to certify a recall election or a zoning board to issue a building permit.

To obtain a writ, plaintiffs usually have the burden to prove: (1) they have a clear legal right to the relief sought; (2) the official has a clear legal duty to perform the act; (3) they will suffer legally recognized damages without relief; and (4) they have no other adequate avenue of relief. If plaintiffs fail to prove any of those four things, they lose.

In the records law context, courts almost never analyze cases like that. Instead, they start from a presumption of access and then analyze whether the reasons the custodian gave for denying a record request are legally valid. But in a few cases (six out of 41, from my research), courts instead analyzed whether the plaintiff had proven all four elements of mandamus — typically focusing on the first and second elements regarding the requester’s clear right and the custodian’s clear duty.

We think those six cases, including one case now before the Supreme Court, approached the question wrong. So we’re asking the court to resolve the conflict. We aren’t taking a position on the merits of the underlying case (which seeks court records finding individuals incompetent to vote), but we believe it’s important that courts use the right analysis.

We hope and trust that the court will issue a decision in keeping with the law’s mandate that all persons are entitled to a maximum amount of access to public records.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Tom Kamenick is the president and founder of the Wisconsin Transparency Project.

Your Right to Know: Officials must bear burden of proof in records cases is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

What do you think of when you think of youth in Milwaukee? Perhaps you think of mental health issues, low levels of graduation or even increasing levels of violence. When we think of youth in Milwaukee, you might find it difficult to see the positives in light of negative press coverage.

It is time to change that story.

Statistics and data points related to challenges facing our youth are real. They aren’t “fake news.”  But they don’t tell the whole story. Incomplete data is often used to create incomplete narratives. These stories confine, marginalize and stereotype Milwaukee youth. These stories drive actions, ideas, discussions, programs, and the policies we propose and implement in local and state governments.

It’s time we expand the data, tell complete stories and harness our strengths to build a thriving environment for youth in Milwaukee. It’s time to both hold the realities of systemic racism, historical inequity, educational challenges and under-resourced supports in the data we see day in and day out, while also moving beyond these negative lenses to bring light through data to the power, resilience and change that is taking root all around us.

Let’s take one statistic: high school graduation. Using Wisconsin Department of Public Instruction (DPI) data, Milwaukee Succeeds’ High School Success Dashboard reports that while 71% of students in Milwaukee graduate in four years, 90% across all of Wisconsin do, and just 67% of Latino/Latina students and 60% of Black students in our city achieve this marker. These are just numbers, but they immediately frame how we think about Milwaukee, its schools and its youth. We see these numbers and instantly go to what we think about the ways these young people or their educators are failing, giving up or simply not making the mark. 

But behind statistics lie real people. Statistics hide nuance, complexity, resilience, coping and support — along with the thousands of lives, millions of moments and what goes into each journey toward graduation. The voices of young people and youth-serving organizations provide critical insight into underlying, lived stories: Do they feel like they are graduating ready for what’s next, what are the factors locally that feed into whether individual youth graduate, like mental health, economics, housing stability and trauma?

We need to think bigger to envision this complex reality underlying the numbers. One of the primary obstacles right now is the lack of coordinated, nuanced data that gives life to data points like high school graduation. DPI reports transparently on graduation rates by race and gender, but getting at what those numbers look like across these groups — such as Black boys and Latina girls —is a convoluted and drawn-out process. A more transparent, deeper look at data would give policy makers and community organizations a better sense of the diversity in how youth are actually doing. 

At the Black and Latino/a Ecosystem and Support Transition (BLEST) Hub, we have spent the last five years cultivating relationships data and envisioning this as an ecosystem. An ecosystem may conjure up ideas of rainfall, vegetation and wildlife — the natural world around us — but life in Milwaukee for young people as they grow up and navigate the world is also an ecosystem. The ecosystem includes the teachers, neighbors and friends they interact with, the institutions and systems that have taken shape over time, the current events and issues (from broad world-altering ones like the COVID-19 pandemic to the opening of a local grocery store), the news, media and social media — and even the health and wellness of the local environment.

Thinking about an ecosystem moves us from looking at numbers in isolation to thinking of our youth as complex, dynamic lives and understanding the areas of strength, resilience and challenge. It gives life to numbers and uplifts stories of strength, resilience and power. 

Using this approach, over the last year, we have rekindled a county-wide My Brother’s Keeper (MBK) initiative, with the African American Leadership Alliance of Milwaukee as the backbone, to synergize efforts to change the lives of young people of color in Milwaukee. The work has been supported by Mayor Cavalier Johnson and County Executive David Crowley, two millennial, native Milwaukeeans who are open about the pride they have in our region and how their respective life journeys were shaped by organizations, people and systems of strength that helped them excel in challenging times. They each have a compelling narrative beyond numbers and statistics. Their lives and stories also reflect the nuance, complexity and power beyond the statistics.

Building on the strengths of Milwaukee — our history of action and resilience, organizations working hard to support youth, young people themselves, and current leadership and initiatives — we must take advantage of this moment. 

With MBK-MKE, Crowley, Johnson and the recent push for accountability and transparency, now is the time to start building new stories. 

The change begins with new, integrated and transparent data, and it ends with a strong Milwaukee where the beauty, dignity, strength and thriving of our Black and Brown youth are front and center.

Wisconsin Watch does not author opinion pieces but occasionally publishes editorials by knowledgeable sources related to our reporting. This column follows a January Wisconsin Watch/News414 report on new efforts to improve academic achievement by Black males in Milwaukee. Walter Lanier is president and CEO of the African American Leadership Alliance of Milwaukee, or AALAM, and pastor of the Progressive Baptist Church of Milwaukee. Gabriel Velez is an assistant professor of educational policy and leadership in the College of Education at Marquette University and the faculty director of the Black and Latino/a Ecosystem and Support Transition (BLEST) Hub in the Center for Urban Research, Teaching, and Outreach.

More complete data and nuanced narratives will help Milwaukee youth thrive is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

The Wisconsin Supreme Court will soon hear a case involving records related to the voting rights of mentally incompetent people. No matter which side wins, the public has in some ways already lost. That’s because while the case pits the public’s right to scrutinize voter eligibility against the rights of voters to protect their own private health information, elected officials have missed a chance to solve the underlying problem.

Wisconsin law allows a court to remove someone’s right to vote in certain cases. The idea is to prevent their vote from being co-opted by someone else, like a nefarious relative or nursing home attendant.

State law specifies that court records dealing with mental competency are not public records unless a court decides otherwise. It’s one of the limited exceptions to the state’s open records law, which holds that most public records kept by state and local governments are public information.

Lacking clear guidance in law, the courts have developed a system by which a form is sent to the Wisconsin Elections Commission. The commission updates its voter records and then alerts a local election clerk to remove the person from the voter rolls. It’s public access to that form that is being disputed in the case now before the state Supreme Court.

The plaintiff in the case is conservative Wisconsin Voter Alliance president Ron Heuer, who previously worked on former Supreme Court Justice Michael Gableman’s partisan, $2.5 million taxpayer-funded 2020 election investigation that found no evidence of widespread fraud.

What it did find were a few examples of nursing home residents casting absentee ballots despite their families saying they were incompetent. However, in most cases, Gableman presented no evidence that a court removed their voting rights.

After the Gableman investigation fizzled, Heuer continued investigating the issue and filed lawsuits in 13 counties seeking records related to those deemed incompetent.

Heuer lost at the circuit court level and appealed in two appellate districts. He lost before the District 4 court based in liberal Madison. But then, in an unusual twist, the District 2 court based in conservative Waukesha County ruled in his favor. Wisconsin appellate courts aren’t supposed to contradict each other. And so the Wisconsin Supreme Court agreed to hear the case.

The problem is that, in order to check whether people adjudicated incompetent to vote have actually been removed from the voter rolls, their names have to be disclosed. And that could violate their right to privacy about their personal health.

Heuer wants access to the records because he claims there could be as many as 20,000 adjudicated incompetent people still casting illegal ballots. That’s incorrect. A Wisconsin Watch investigation found that’s an artificially inflated figure based on everyone under a court-ordered guardianship, not everyone who has lost their right to vote.

But the number is not zero. At Wisconsin Watch’s request, Dane County Clerk Scott McDonell reviewed the voting record of adjudicated incompetent people in Dane County. He found 95 examples of people who combined had cast more than 300 ballots since 2008. The Wisconsin Elections Commission checked its files and advised clerks to review their records.

McDonell, a Democrat, and the Wisconsin County Clerks Association advocated for a change in law that would make the law clearer on how the sensitive court records should be communicated to election clerks. Assembly Campaign and Elections Committee chair Rep. Scott Krug, R-Nekoosa, moved a fix through his committee, and it passed with bipartisan support.

But the bill died in the Senate because Republicans objected to an unrelated provision allowing absentee ballots to be processed on Mondays before Election Day. Gov. Tony Evers vetoed a separate Republican fix because it would have required nursing homes to contact families before residents could vote.

Wisconsin needs to find a way to make these records available without compromising the medical privacy of individual voters, and then get to work passing bipartisan fixes to obvious problems. A functional government requires both an informed public and elected leaders responsive to problems identified by the public.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a nonprofit, nonpartisan group dedicated to open government.

Your Right to Know: Rights clash in records dispute is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.