WisconsinEye
Tom Kamenick: “There’s not that many laywers that do this work.”
For individuals and organizations seeking state records, Wisconsin law is clear: the state guarantees public access to government business, barring “exceptional cases,” and identifies a lack of transparency as “generally contrary to the public interest.”
Despite the fact that the public right to state information is baked into Wisconsin legal code, freedom of information advocates say that state agencies frequently block or otherwise delay records requests.
“I would say that in recent years, we’ve seen more bad faith assertions of reasons to deny access [to public records],” says Bill Lueders, president of the Wisconsin Freedom of Information Council (and an Isthmus contributor).
To address the issue of transparency in government, Tom Kamenick, a former counsel for the conservative law firm Wisconsin Institute for Law and Liberty (WILL), has founded a law firm specifically to handle open records cases in the state.
“The way the law’s written is pretty good among the states. Our definition of what’s covered by a record is quite broad, there’s very few exceptions to it similar to when it comes to meetings. A lot of governmental bodies are covered by open meetings law … but the enforcement is difficult,” says Kamenick. Many states — including Illinois, Connecticut and Hawaii — have created state commissions to handle records disputes. Wisconsin possesses no such organization, and furthermore, says Kamenick, “the attorney general and district attorneys can bring lawsuits but they rarely do, so it’s up to individuals to enforce it with lawsuits, which doesn’t happen often.”
In one recent case, WILL filed a request for electronic records from the Department of Public Instruction and was rejected on the basis that retrieving the documents would be too time-consuming. Months after the stalled request, the firm sued DPI under Wisconsin’s open records law and received the full trove of documents within days. WILL and Kamenick also represented Isthmus in a lawsuit for records from the Madison Police Department last year. After the lawsuit was filed, the city quickly settled it, releasing the records and apologizing.
The Wisconsin Transparency Project will act as a backstop for individuals and organizations seeking records and facing prohibitively expensive fees for access, slow response time, and outright denial.
“Once in a while,” says Kamenick, “I’ll see a district attorney in northern Wisconsin bring an open records case for a meetings violation, but I never see open records, which leaves people to hire a lawyer on their own.
“But hiring a lawyer is expensive, and there’s not that many lawyers that do this work and for most of them it’s a smaller part of their whole practice. And so my conclusion was that there needs to be someone out there to do that at low cost to people,” Kamenick says.
To cover legal fees, Kamenick says that if the firm chooses to take up a case, it will charge clients “a couple of hours” and cover the remaining fees on a contingency basis. It is a for-profit venture and does not accept donations or grants from groups, Kamenick says.
Litigating violations of open records law can establish a precedent for how the state handles open records requests. When Lueders, represented by attorney Christa O. Westerberg, sued Rep. Scott Krug (R-Nekoosa) for refusing to provide electronic copies of emails, Wisconsin courts found that access to emails — in searchable, electronic form — was protected by state law. An uptick in litigation over transparency violations could, Lueders says, have a clarifying effect on the law and how it is enforced.
Going forward, Kamenick says that he hopes to work with journalists as well as “individuals who get interested in an issue and run into trouble ... and [the] whole slate of local groups of concerned citizens, some of them taxpayer groups, some of them environmental groups” who want access to government records and meetings.
[Editor's note: This story was corrected to note that attorney Christa O. Westerberg represented Bill Lueders in his lawsuit against Scott Krug.]
