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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

Tue, Jun 10th 2014 3:59pm — Tim Cushing

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…

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.

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.

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.

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.

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.

2014 05 06 Wisconsin Court of Appeals Ardell v Milwaukee School Board (PDF)2014 05 06 Wisconsin Court of Appeals Ardell v Milwaukee School Board (Text)

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Filed Under: foia, freedom of information, korry ardell, motive, wisconsin

18 Comments

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Anonymous Coward, 10 Jun 2014 @ 4:28pm

Similar to Public Archives
This case is similar to the claims made by state archivists that a library patron must get permission to publish. All a patron has to do is ask a third party to get the material for them.
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zip, 10 Jun 2014 @ 4:33pm

the other extreme
The Freedom Of Information Act can be -- and has been-- abused by all sorts of zealots and crazies who don't know when enough is enough. Here is the story of Barbara Schwarz, the world record holder for filing FOIA requests:

WASHINGTON -- Working from her austere Salt Lake City apartment or a nearby public library for more than a decade, Barbara Schwarz has carpet-bombed every federal department and agency with thousands of requests for public records the government says don't exist.

With no legal training, she has filed dozens of lawsuits against thousands of federal employees around the country, claiming they have withheld information on her Utah hometown, which can't be found on any map.

And she has written hundreds of letters to the White House, demanding to know the whereabouts of a husband she contends was falsely imprisoned for her own murder.

A twisted plot, to be sure, but one that can be recited almost chapter and verse by a legion of civil servants and judges who have dutifully waded through pages of her screeds since they began appearing shortly after she moved to Salt Lake City in 1989 from Europe in search of a murky past.

The U.S. Department of Justice contends Schwarz has made more requests under the landmark public records statute known as the Freedom of Information Act (FOIA) than any other person since it became law in 1966. A blueprint for open democracy and government accountability in other countries, the FOIA has been stretched to its limits by a reclusive woman who, by her own admission, is in the country illegally.

Continued on http://www.cs.cmu.edu/~dst/Secrets/barbara_schwarz.html
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AricTheRed (profile), 10 Jun 2014 @ 5:24pm

Re: the other extreme
One data point does not define the set.

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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Anonymous Coward, 10 Jun 2014 @ 5:30pm

Identity, purpose of requestor
http://docs.legis.wisconsin.gov/statutes/statutes/19.pdf
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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Anonymous Coward, 10 Jun 2014 @ 5:52pm

Data about the requestor
http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=111596

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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FrankyStein, 10 Jun 2014 @ 6:35pm

It's for the Children
It seems to me that one could circumvent the "perception" issue by stating the reason for the request. "It's for the children." Or, "I need these records to promote transparency." But, "for the Children," is always a winner. NSA violating your rights? It's OK. 'Cuz it for the kids.
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Anonymous Coward, 10 Jun 2014 @ 6:41pm

Re: the other extreme
Who's to say that Barbara is not right? And that the town does exist? And that her husband is in jail or prison?

Area 51. James Clapper. Prez Barry. NSA spying. Moon landing. Etc. The truth ... is ... out ... there ...
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Techanon, 10 Jun 2014 @ 7:30pm

Re: It's for the Children
"To fight terrorists" seems like the other winner.
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Anonymous Coward, 10 Jun 2014 @ 10:27pm

...What are the odds? The Governor with the most publicly-obtained evidence of corruption is granted an exception based on motive.
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David, 10 Jun 2014 @ 10:50pm

Throwing the baby out with the bath water
If somebody gets screwed over by an official using perjury and convincing a jury and has to serve time for it, then realigns his approach while in jail to get together the proof for how he has been screwed over by doing research using public records, I consider this quite matching motivations for having FOIA in the first place.

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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alternatives(), 11 Jun 2014 @ 4:06am

Re: Throwing the baby out with the bath water
If somebody gets screwed over by an official using perjury and convincing a jury and has to serve time for it

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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Anonymous Coward, 11 Jun 2014 @ 6:57am

let's face it people, no 2 courts, 2 judges, even two places read off the same hymn sheet. they all change what they want to how they want, so as to be able to do whatever they want at the time. basically, because of this, no one knows where the hell anyone is, what will result from a court case or what punishment, if at all, will be applied. this is what happens when the top of the tree are allowed to adapt a situation to fit as wanted, and not have the deed fit a crime
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Anonymous Coward, 11 Jun 2014 @ 7:00am

Re: the other extreme
The solution to this is not locking up this information that is been created serving the public. It is preemptively publishing most information that should be available under an FOIA request. This will save resources, money and time, increase transparency and create an environment whereby bureaucrats do not pillage the public purse in secret.
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cbpelto (profile), 11 Jun 2014 @ 2:38pm

RE: Heh

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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cbpelto (profile), 11 Jun 2014 @ 2:42pm

Re: ADDENDUM
Personally�.I like what Abraham Lincoln had to say about this sort of business�.

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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GEMont (profile), 11 Jun 2014 @ 4:41pm

Freedom 2B Investigated
Hmmmmm.... make a Freedom Of Information request and before the request can be initiated, the system MUST do a full background check on the requestor to insure that their motives are pure and/or that they are not an ex-convict.

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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richard40 (profile), 12 Jun 2014 @ 12:33pm

Re:
You have no evidence that gov walker has any more corruption than any other gov, more likely far less. Perhaps you should rephrase to say "The governor with the most malicious false charges of corruption by corrupt fanatical leftists". And ironically I suspect walker wants this decision overturned because he wants his people to use FOIA to make the phony corruption investigation used to targeted him more transparent, to investigate the corrupt dem AG, and the corrupt state agency, who first brought the phony corruption charges against his people.
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Martin, 12 Jun 2014 @ 12:35pm

Re: the other extreme
So the answer is to deport her, since she is not legal. Or don't let non-citizens burden the government (hah). I wonder if she has been voting too.
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