Wisconsin Court Broadens FOI Exception, Allowing Government Agencies To Deny Requests Based On Perceived Motive
from the as-if-government-agencies-need-any-more-excuses dept
An interesting -- and possibly harmful -- ruling on public records requests has just been issued by the Wisconsin Court of Appeals. Although the ruling has a very limited jurisdiction, it could be used to push for similar legal activity elsewhere. Journalism student David Schick (who was last seen drawing the ire of Georgia State Attorney General Sam Olens over the release of public documents) has the story.
In a ruling earlier this month, the Wisconsin Court of Appeals set a precedent of allowing state officials to consider the purpose of a citizens’ public records request before handing over documents…How did Korry Ardell get himself excluded from the "general class of persons?" By being generally abusive and violent, it would appear. The person whose records he was seeking had previously obtained a restraining order against Ardell -- something he had violated in the past, leading to a six-month visit to a local correctional facility.
According the the appeal, “[Korry] Ardell has not aligned himself with the general class of persons (emphasis added)” that make records requests to ensure government transparency.
The decision groups Ardell with others who are denied access to public records -- namely, prisoners. But Ardell's time had been served and he was no longer incarcerated when the request was made. Ardell's previous willingness to violate court orders does seem to give him a higher-than-normal chance for recidivism, something the court also took into account when rendering this decision.
Milwaukee city attorney Melanie Rutledge feels this is just a reaffirmation of current restrictions on FOI requests. Unfortunately, the court goes even further than simply aligning Ardell with those currently being incarcerated by suggesting that past criminal activities may be able to exclude persons from filing FOI requests, even if time has been served.
Ardell disagrees with this conclusion and argues that Levin v. Board of Regents of the University of Wisconsin System, 2003 WI App 181, 266 Wis. 2d 481, 668 N.W.2d 779, stands for the proposition that identity is never a proper consideration when determining whether information should be released under the Wisconsin open records law. Citing WIS. STAT. § 19.32(3), Ardell asserts that the only exception to this hard-and-fast rule is for committed and incarcerated persons.While the decision does appear to make sense in this situation, it opens up the possibility of future request denials based on the requester's personal background, or the responding agency's perception of the requester's motive. ("Mosaic theory," anyone?) The court states that this will be determined on a "case-by-case basis," but that's a potentially expensive remedy that not every requester will be able to avail themselves of. This has the potential to route more requests through the Wisconsin court system, aligning this state with the US government itself, which seems to prefer legal battles to transparency.
Indeed, Levin stands for the general proposition “that the identity and purpose of the requester of public records is not a part of the balancing test to be applied in determining whether to release records.” Id., 266 Wis. 2d 481, ¶14. However, as we set forth above, the determination of whether there is a safety concern that outweighs the presumption of disclosure is a fact-intensive inquiry that we determine on a case-by-case basis…
Ardell’s violent history with the MBSD employee, including his two convictions for violations of the domestic abuse injunction, align him more closely with the class of persons statutorily denied access to public records for safety reasons, that is, committed and incarcerated persons. See WIS. STAT. § 19.32(3). Ardell has forfeited his right to disclosure of the MBSD employee’s employment records by demonstrating an intent to hurt the employee, and it would be contrary to common sense and public policy to permit him to use the open records law to continue his course of intimidation and harassment.
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Filed Under: foia, freedom of information, korry ardell, motive, wisconsin
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the other extreme
Continued on http://www.cs.cmu.edu/~dst/Secrets/barbara_schwarz.html
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Re: the other extreme
Her requests, if outlandish and crazy have been apparently responded to. A vast wastland of abuse of the public by government officials seperates this woman's request from many We read about here and other places.
I'm disappointed that this is the stawman you set up to defend the governemnt having another way to tell The People "Fuck Off. Because ,"!
:-(
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Re: the other extreme
Area 51. James Clapper. Prez Barry. NSA spying. Moon landing. Etc. The truth ... is ... out ... there ...
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Re: the other extreme
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Re: the other extreme
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Identity, purpose of requestor
CHAPTER 19
GENERAL DUTIES OF PUBLIC OFFICIALS
https://docs.legis.wisconsin.gov/statutes/statutes/19/II/35
19.35 Access to records
(i) Except as authorized under this paragraph, no request under pars. (a) and (b) to (f) may be refused because the person making the request is unwilling to be identified or to state the purpose of the request.
http://www.doj.state.wi.us/sites/default/files/dls/public-records-compliance-outline-2012.pdf
C. Purpose. The requester does not need to state the purpose of the request. Wis. Stat. § 19.35(1)(h)
and (i).
page 33
c. The identity of the requester and the purpose of the request are not part of the balancing test.
See Kraemer Bros., Inc. v. Dane County, 229 Wis. 2d 86, 102, 599 N.W.2d 75, 83
(Ct. App. 1999).
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Data about the requestor
The court is not clear about whether the public record is barred from disclosure for everybody or just for Ardell.
https://docs.legis.wisconsin.gov/statutes/statutes/19/IV/67
19.67 Data collection.
19.67(1)(1) Collection from data subject or verification. An authority that maintains personally identifiable information that may result in an adverse determination about any individual's rights, benefits or privileges shall, to the greatest extent practicable, do at least one of the following:
19.67(1)(a) (a) Collect the information directly from the individual.
19.67(1)(b) (b) Verify the information, if collected from another person.
...
19.69 Computer matching.
19.69(1)(1) Matching specification. A state authority may not use or allow the use of personally identifiable information maintained by the state authority in a match under a matching program, or provide personally identifiable information for use in a match under a matching program, unless the state authority has specified in writing all of the following for the matching program:
19.69(1)(a) (a) The purpose and legal authority for the matching program.
19.69(1)(b) (b) The justification for the program and the anticipated results, including an estimate of any savings.
19.69(1)(c) (c) A description of the information that will be matched.
...
(3)Notice of adverse action.
19.69(3)(a)(a) Except as provided under par. (b), a state authority may not take an adverse action against an individual as a result of information produced by a matching program until after the state authority has notified the individual, in writing, of the proposed action.
19.69(3)(b) (b) A state authority may grant an exception to par. (a) if it finds that the information in the records series is sufficiently reliable.
...
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It's for the Children
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Re: It's for the Children
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Re:
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Throwing the baby out with the bath water
This is too close to Ardell's case (about which I cannot really say anything) to be separated with any amount of cleanliness by a clerk answering to a FOIA request, and the barrier of having to sue first would render the FOIA mostly useless since it means that the denial of the FOIA request would not be an obvious breach of citizens' rights leading to fee shifting.
So it would end up with "freedom of information" only for the rich.
It's better to accept the occasional misuse here. The whole idea of FOIA is that government officials have no expectation of privacy in the execution of their paid job on record.
Any harrassment or other misdemeanors resulting from information handed out are separately indictable of course.
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Re: Throwing the baby out with the bath water
Its Wisconsin AND Milwaukee County.
Perjury? Ha!
I'd have linked directly to "the lies have it" but I don't see a copy online.
In comparison with their frequency, it is likely that false statement crimes are among the most under-prosecuted in this country. Though state and federal statutes carry tringent penalties for perjury, few perjurers ever actually are subjected to those penalties. As prosecutor E. Michael McCann has concluded, "Outside of income tax evasion, perjury is…probably the most underprosecuted crime in America."[4]
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What was it the Founding Fathers wrote in that old document featured in the movie National Treasure?
... when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them [the People] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Or as one of those men later said….
A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives. -- President James Madison
The State, hiding information about what it HAS done and/or IS doing is prima facia evidence that the State is corrupt.
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Re: ADDENDUM
Our safety, our liberty, depends upon preserving the Constitution of the United States as our fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution. -- Abraham Lincoln
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Freedom 2B Investigated
Nope - no chilling effect there.
I wonder just how long its gonna be before they simply do away with this pesky FOIA thing.
After all, they've made it almost useless already, so why bother keeping it in effect at all, except, I suppose, as Democratic Window Dressing.
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