Nora G. Hertel
Milwaukee Assistant City Attorney Melanie J. Rutledge (center) testifies for the bill.
Journalists are usually the ones reporting the news. But several testified Wednesday at a public hearing against a bill allowing government agencies to charge new fees for public records requests.
"I feel a little bit uncomfortable today," acknowledged Michael Juley, an editor with the Milwaukee Journal Sentinel, to members of the Assembly Committee on Government Operations and State Licensing.
The bill would allow records custodians to charge requesters for the time spent reviewing and editing out information they decide to redact. Supporters, including Rep. Garey Bies (R-Sister Bay), a co-sponsor of the bill, argued the charges are necessary to compensate strapped public agencies for the time spent redacting confidential information from records.
The state's public records law dates to 1981. Last year, the Wisconsin Supreme Court ruled that it was illegal for the city of Milwaukee to charge the Milwaukee Journal Sentinel anything other than locating, shipping and copy fees for the public records the paper had requested. But the justices also wrote in their decision (PDF) that lawmakers should revisit the law to consider the imposition of fees for seeking out and redacting confidential information.
Curt Witynski, assistant director for the League of Wisconsin Municipalities, said compliance with open records requests "costs money, takes time, and uses resources." Witynski said that many local governments are dealing with tight budgets that can be strained by public records requests.
Melanie Rutledge, an assistant city attorney in Milwaukee, testified for the bill, flanked by two city police officers responsible for responding to open records requests.
"Transparency in government is important," said Rutledge. "But there has to be balance, there has to be a sharing of costs."
While many requests for public records from the police department can be dispatched with little time and effort, broad requests often require staff to spend a long time sifting through records and blacking out sensitive information. Rutledge suggested that the expansion of investigative reporting has led to broader requests which eat up weeks of officers' time, causes backlogs and inconveniences citizens who have more narrow requests.
Rep. Brett Hulsey (D-Madison), a member of the Assembly Committee on Government Operations and State Licensing, asked Rutledge whether the city could more efficiently process these records requests, either by using lower-paid clerks or by relying more heavily on software to electronically sift out confidential information. Rutledge said Milwaukee has recently acquired such software but that edited records would still need to be reviewed by employees.
Don Nelson, the director of state relations for University of Wisconsin-Madison, told the committee that he serves as the custodian of hundreds of thousands of student records. He said that when he responds to open records requests he has to consider student and employee privacy and federal laws such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which protects patient privacy.
Because the university is legally liable for information released in public records, said Nelson, "lawyers have to review these things."
"This bill will at least recognize that those costs [for attorneys and staff hours] do exist," said Nelson.
But to opponents of the bill, additional charges for public information amount to a duplicate tax, as taxpayer dollars already cover the wages of public workers, including their hours spent pulling and editing open records.
"Doing what they're paid to do is not something for which they should be able to charge extra," said Bill Lueders, a journalist and president of the Wisconsin Freedom of Information Council.
Lueders told the panel that the new bill threatens the state's standing open records law, which "establishes a presumption of openness." He also predicted it would "inevitably be looked at as a tool to beat back open records requests, to make them unaffordable."
Christa Westerberg, an attorney and vice-president of the Freedom of Information Council, also noted that "the bill fails to specify the rates that may be charged."
Instead, the bill allows public offices and custodians of public information to impose fees at their own discretion, reflecting the hourly wages of the attorney, staff person, or clerk working on the request.
Committee member Rep. Steve Nass (R-Whitewater) acknowledged that members of the public can be intimidated when filing requests for open records and shared his own experience with high fees from a county office, "clearly trying to make money."
In spite of these occasional "bad actors" who could manipulate the system, Nass asked if a balance could be found.
Juley, the editor with the Milwaukee Journal Sentinel, responded that public offices should pre-edit documents and make them automatically available online.
"Move this information where people can see it better," suggested Juley.
Rep. Tyler August (R-Lake Geneva), chair of the Assembly Committee on Government Operations and State Licensing, remains undecided on the bill, according to an aide. No executive session has yet been scheduled for the committee to advance the bill.