Madison assistant city attorney Roger Allen has apologized for the police department taking more than a year to fulfill an open records request from Isthmus, saying the request accidentally “fell through the cracks.” He says the city is working to make sure that delays like this won’t happen again.
“This [delay] was an outlier and, quite frankly, was embarrassing both to the records section in MPD and to my office,” Allen tells Isthmus.
The request for police records was made in December 2016 but not filled until after Isthmus and the Wisconsin Institute for Law and Liberty filed a lawsuit on Feb. 1, 2018. The city then turned over the records, which resulted in the March 8 article “Shielded.” The piece examined how the police department handled an internal investigation of Officer Stephen Heimsness.
Tom Kamenick, deputy counsel and open government specialist for the Wisconsin Institute for Law and Liberty, or WILL, calls the settlement a victory for public access to government records.
“It’s not often we get an admission of wrongdoing with a settlement like this. Often times, the defendants insist that there be no fault,” Kamenick says. “We appreciate that the department was willing to step up and admit its mistakes.”
The final terms of the settlement were reached this week. In addition to supplying the records, the city refunded the cost of the records and paid $1,731.45 in legal fees and court costs.
Isthmus and freelancer Gil Halsted, a retired Wisconsin Public Radio reporter, requested records from the Madison Police Department on Dec. 7, 2016. In the three months after making the records request, Madison Police Lt. John Radovan asked for several clarifications and the scope of the request was narrowed. On March 22, 2017, Isthmus paid the department $182.25 for 729 pages of documents. The records were promised by the end of June 2017 and, on another occasion, by the end of July 2017.
Allen says the lawsuit prompted changes to ensure this “doesn’t happen again.” He says the Madison Police Department is in the process of implementing a system that will electronically track open records requests and give reminders when a request has become “stale or overdue.” In the past, MPD has used a paper system to track requests, Allen says.
“My mantra here has always been that bad news doesn’t get better with age. So we’d rather lay it all out there and take our lumps if we messed up,” Allen says. “The number one thing is to not be afraid to say what it is you’re looking for...because that can help us identify what records might be responsive to that request.”
Unrelated to this case, the police are also transitioning to a full-time civilian records custodian, a move approved by the Common Council on March 20. A lieutenant has been in charge of open records compliance for the department. In a Feb. 6 memo, Human Resources Services Manager Mike Lipski states lieutenants changing assignments regularly “causes issues with training.” Additionally, a lieutenant is needed to staff the new Midtown Police District opening later this year.
Allen has supervised public records at the city attorney’s office for the better part of two decades. In the early 2000s, he says the city primarily received open records from the press and insurance companies. Now, he says, “requests from members of the public have exploded.”
The city still receives a lot of media requests, he adds, but “they are broader in scope nowadays... much more detailed.” Wisconsin public records law requires government entities to fulfill records requests “as soon as practicable and without delay.” Kamenick says WILL — a member of the Freedom of Information Council — prepared to use this case as a vehicle to establish guidelines on how long is too long for an open records request to be fulfilled.
“While we couldn’t achieve that result, we are glad that MPD acknowledged that 13 months was far beyond acceptable,” Kamenick says. “I think everybody in the government-sunshine camp recognizes that this is a valuable victory.”
Scot Ross, director of the liberal advocacy group One Wisconsin Now, criticized Isthmus for teaming up with WILL on the case, tweeting on Feb. 2: “@isthmus is suing @paulsoglin’s police department using a right wing advocacy group that’s gotten $4 million from @scottwalker’s campaign chair’s foundation.”
Ross was referring to WILL receiving funding from the Bradley Foundation, a group known for bankrolling conservative political causes and organizations.
Kamenick says ensuring access to public documents bridges the usual partisan divide.
“No organization is two-dimensional,” Kamenick says. “There are ideals and principles that have nothing to do with partisan politics or ideological lines.”
Ross says he, too, believes access to public documents is important.
“I never said you wouldn’t get a helluva lawyer if you use the Bradley Foundation’s marquee organization,” Ross says. “I just wouldn’t do it…. WILL exists because Scott Walker's campaign chair created it when he ran the Bradley Foundation so that it can file lawsuits on behalf of Walker's agenda."
