State Bar of Wisconsin - Empowering your vote: Wisconsin’s transparency laws

By Atty. Tom Kamenick

Know Your Legal Rights is a bi-monthly column distributed by the State Bar of Wisconsin. It is written by members of the State Bar of Wisconsin’s Lawyer Referral and Information Service (LRIS), which connects Wisconsin residents with lawyers throughout the state. To find an attorney in your area, visit wislaw.org.

Election season is here, and we are about to embark on a journey of evaluating our elected representatives, the decisions they have made, and the policies they have created during their terms. If you want to go beyond the hoopla of the TV ads, it’s important to understand Wisconsin’s transparency laws. Journalists use them often, and the public has the same right to these powerful tools.

OPEN RECORDS LAW

All state and local government records are presumed to be open to public inspection and copying for your use. While there are exceptions, you never have to prove that you are entitled to a record – it’s the government’s job to prove they can withhold it.

Who is Subject to the Open Records Law?

The open records law applies to all elected officials and all units of state and local government. The governor, state agencies, the court system, public universities, and both houses of the legislature all are subject to the law. Locally, you can get records from counties, schools, cities, villages, and towns, among others.

What Constitutes a Record?

What’s a record? That definition is broad, too. It includes virtually anything in government possession that contains information, regardless of the format.

Not everything that is a record must be produced. Laws like HIPAA (medical records) and FERPA (student records) exempt certain records, and there are many more exemptions.  But it’s the government’s job to know what they can withhold, not yours, so go ahead and ask.

How Do You Request a Record?

You can ask for a record verbally, but it’s better to make a written request. You can identify a record specifically (the city’s 2024 budget), or by general description (all emails sent to school board members yesterday).  You don’t have to give your name or explain why you want them.

Unfortunately, Wisconsin’s law doesn’t provide a deadline for responses other than “as soon as practicable and without delay.” Good custodians will fulfill small requests immediately.  A few days or a couple weeks is normal for simple requests. If your request is complex or there’s a backlog, you might wait months.

You may have to pay for the record. Custodians can charge you for locating records (at the hourly wage of the lowest-paid capable person), reproducing records (their actual cost of paper and ink/toner), and mailing records to you (the actual cost of postage).  Under a new law, law enforcement agencies can charge for the time they spend redacting video recordings, although there are some waivers available.

OPEN MEETINGS LAW

All meetings of state and local bodies are presumed to be open to the public and must be preceded by reasonable notice.

Who is Subject to Open Meetings Law?

This law applies only to “governmental bodies.” Not every group of government officials or employees working together must follow the law. But any formal group that acts as a cohesive body counts.  That includes the state legislative bodies and state agencies run by a board rather than a single secretary (for example, the U.W. Board of Regents). Locally, county boards, school boards, city councils, village boards, town boards, and their committees all count.

What Constitutes a Meeting?

 All “meetings” of governmental bodies must be held open to the public and must be preceded by notice of when it is, where it is, and what’s going to be discussed. To be a meeting, enough members need to get together to control the outcome of any decision (usually a majority), and they must be talking about government business. If a majority show up at the local high school football game, that’s not a meeting. Nor is a conversation among two members about government business (unless the board only has three members).

Attending Meetings

You can attend all public meetings. You can also record any public meeting as long as you don’t interfere. They may be able to go into closed session, but only in very limited circumstances, and they have to announce what exemption they are using and the general nature of their discussions.

Resources

Remember, government records are the public’s records and government meetings are the public’s meetings. They work for you, and you have the right to see what they are doing.  If you run into issues, or have more questions, valuable resources include:

• Wisconsin Department of Justice Office of Open Government
• Wisconsin Freedom of Information Council
• Wisconsin Transparency Project

Tom Kamenick is the President and Founder of the Wisconsin Transparency Project, a law firm focused solely on enforcing Wisconsin’s Open Records and Open Meetings Laws. Over the past five years, the Project has litigated 40 cases with a success rate exceeding 90%, written over 200 letters challenging illegal practices, and offered free advice to more than 500 individuals and organizations. Tom will be presenting at the State Bar of Wisconsin’s legal education program, “Public Records, Open Meetings Update,” on September 4. For help finding an attorney, contact the State Bar of Wisconsin Lawyer Referral and Information Service at wislaw.org.