The two most common complaints I hear from people seeking public records are “Why is it taking so long?” and “Why does it cost so much?” Unfortunately, it’s often difficult to mount a successful legal challenge to delays or fees because of the way the state’s laws are worded.
Wisconsin’s Open Records Law imposes no deadline on producing records. All it says is they must be produced “as soon as practicable and without delay.” What does that actually mean? While the state Department of Justice recommends that simple requests receive a response within 10 business days, the DOJ itself doesn’t heed [wisconsinexaminer.com] its own advice, often taking months — even years — to fulfill requests.
Courts haven’t given much guidance. They’ve essentially said it’s a reasonableness test that takes into account the size and complexity of the request, the resources of the government agency, and whether they are making a good faith effort to comply. But how long is too long?
Ideally, we’d have a deadline in our law, as some other states do. This may require prioritizing resources properly, which should already be happening. Fulfilling record requests, the law says, is “an essential function of a representative government and an integral part of the routine duties” of public officials.” And yet I’ve seen agencies with budgets in the hundreds of millions of dollars who have one person doing this work.
The other common problem with the records law is it allows custodians to charge fees for complying with records requests. Here, I am especially concerned about “location” fees. The government can charge for the “actual, necessary and direct cost” of finding records, typically at the hourly rate of the lowest-paid employee capable of searching. But sometimes this is still a considerable amount, and some custodians even want to charge for employees’ benefits.
This amounts to, essentially, the government getting paid twice for the same work. Our taxes already pay the salary or wage of the employee searching for records. The requester pays them again.
Permitting location fees also incentivizes government agencies to be sloppy in their recordkeeping. The more disorganized their records are, the longer it will take them to find records, so the more money they can collect from requesters. Those high costs also discourage requesters from following through with requests.
For example, I’ve run into police departments that still store their personnel records in paper boxes, so if somebody wants, say, disciplinary records, the department can quote an often prohibitively high price to search each box for disciplinary files. Even if records are stored electronically, they can be hard to retrieve if they are not sensibly organized.
How can we fix these twin problems? If I were in charge (and I’m not), I’d put a strict deadline in the law and eliminate location fees altogether. But realistically, we are unlikely to see either reform.
Perhaps a more practical solution would be to tie the two problems together. Change the law so that custodians can charge location costs only if the records are produced within a strict deadline — perhaps 10 business days.
That compromise would incentivize better, more organized record keeping. Government agencies would now want to keep their records — especially those people frequently request — arranged in ways easy to search and easy to find. It would also incentivize them to devote enough resources to fulfill record requests promptly.
The result? Requesters will get records faster and cheaper, and government agencies might also see a net increase in revenue, as more requesters opt to pay for prompt service rather than walk away.
Pairing these two issues is an idea worth pursuing.
Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org [wisfoic.org]), a group dedicated to open government. Tom Kamenick, a council member, is the president and founder of the Wisconsin Transparency Project.
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