A look at ‘Sunshine Laws’ and where we go from here

Legal Editor’s Column

Gary Ernest Grass, esq., Legal Editor

If I had to write all the world’s sunshine laws, I’d start with Wisconsin’s Open Meetings and Public Records Laws, because those are the laws I know. We tend to view these laws as some the best in the world, which they could well be, but how many people really keep tabs on other states or countries’ laws? Wikipedia has a huge article on the public records laws of Finland, but I’ll bet you haven’t read it.

Sunshine laws comprise a few other things, like whistleblower protection, laws that require records to be kept in the first place, and policies that extend access, such as by broadcasting important meetings (think Wisconsin Eye or C-SPAN), but open meetings and public records are the core.

Wisconsin’s open meetings laws are guided by the principle that as much public access should be provided as possibly can be without making it impossible for the government to function. There’s a lot of room for improvement in practice, but the idea is good and the basic rules make sense. Every meeting of a governmental body must be preceded by notice and must be open to the public, unless some confidential matter requires a closed meeting. The exemptions are specifically listed and relatively narrow. The law can apply even when less than half the members of a body get together (because some government actions can be stopped by a minority) and even when the body meets to collect information rather than make a final decision.

The penalties could probably be improved. An innocent member of a village committee that blunders into ten violations at a single meeting must theoretically be fined a minimum of $250 if anyone were to sue, whereas a single corrupt act that shields a multi-million dollar deal benefiting a state senator’s sponsor tops out at a maximum fine of $300. But it may be possible to void the action taken at the meeting, so that’s nice.

One thing that Wisconsin has done pretty well is provide good public explanations for what might otherwise be a dauntingly complex area of law for a layperson to navigate. The Department of Justice has published comprehensive Compliance Guides for both the Open Meetings Law and the Public Records Law. The UW Extension Local Government Center has a series of short videos on you-tube that show village and town boards and committees how to comply with the Open Meetings Law. There are still tons of mistakes, but we have at least the basis of a sound infrastructure to address them.

Most government bodies are pretty conscientious about complying with public records laws, though some authorities don’t even realize they have public records duties and some custodians can be jerks.

Literally anyone may request records (though there are restrictions on some confined and incarcerated people). You don’t need to cite any laws, just ask for what you want, and in most cases the custodian will try to be helpful. Remember that the law covers records, not general information, so the law isn’t automatically invoked whenever you ask a question. If you want to see a document, you will need to be able to identify the document or at least describe it. It may be smart to talk with the official about what records are kept, so that you know what to ask for. Make sure if you describe a set of records that you limit the date range or content in such a way that you aren’t describing hundreds of times more records than you really need. The response could take hundreds of times longer and cost hundreds of times as much, but more likely will be rejected.

Responses to record requests must be prompt. The DOJ recommends acknowledging receipt within 10 days and fulfilling the request within that time if possible. Responses should come as quickly as the record-holder is able to respond, should cost no more than the direct cost to the body, and should be as complete as possible: if a whole record cannot be produced because of information it contains on page 7, it has to be released with that information blacked out.

There are a long list of exemptions, which mostly make a lot of sense, though some could stand to be limited. The rules seek to preserve the privacy of state employees, so that if a city sanitation worker is criticized by his supervisor for tardiness or making a personal call, that isn’t regarded as a public issue. This is logical in a land where privacy is valued, but one wonders if the same logic should really apply to a police officer’s record of violating civil rights or using racial epithets on the job.

One inherent problem with public records laws is that the duty to respond is on the same official who may have an interest in hiding a record. There is no independent auditor to intervene in making responses or spot check compliance. One issue for the future is how we are to reconcile the goal of transparency in the public sector with the near-complete opacity of private actors who affect the public welfare. A few semi-private entities and public contractors have disclosure obligations similar to public agencies, but most private firms are required to disclose extremely little. Generally, this is good. As noted above, we love us some good privacy here in America. But shining a little sunlight on mega-corporations and major campaign contributors seems like a logical expansion if we treat the importance of government openness seriously. But it’s a hard question best saved for another time.