January 2, 2015

Your Right to Know: Official calendars are a basic public record

It’s a pretty simple question for a public official: “What exactly do you do with your time?”

Sometimes, the best way to answer that question is to obtain the official’s calendar, through the state’s open records law.

Jason Smathers

Jason Smathers

In my work as a reporter, I’ve done this for the state treasurer and his staff, who work for an office with few official duties. I’ve also used the monthly calendars of Gov. Scott Walker to plot his travel and track his day-to-day meetings.

So when I wanted a better understanding of how the duties of Sheboygan Mayor Mike Vandersteen and Chief Administrative Officer Jim Amodeo overlap, I asked to see their calendars.

Amodeo’s response was simply, “Oh, OK.”

Vandersteen’s response was more terse. While he said he would be willing to discuss his day-to-day duties, he considered the request a burden, given the small size of his staff and the fact that his calendar contained personal items.

Both officials eventually provided these calendars, but with a letter asserting that these documents did not actually constitute a record under state law. As such, the letter said, they had no obligation whatsoever to hand them over.

It was a bit bewildering. How could these records, so basic to the performance of their official duties, be exempt from the law?

The letter’s reasoning was that calendars are basically “akin to drafts” or notes prepared for the mayor or administrator’s personal use. Wisconsin’s open records law exempts such drafts or notes from disclosure requirements but construes this exemption narrowly, like all exemptions.

The city’s argument rests on a few out-of-state cases — one from Kentucky and one from California — in which courts upheld the denial of access to calendars. In short, both courts decided that the public’s interest in disclosure was outweighed by the government’s interest in keeping those records under wraps.

In a more recent case, the city of Philadelphia successfully argued that the calendar of its mayor and city councilmen were not records. A Pennsylvania appellate court found that while they may carry an official purpose, the calendar itself is more of a “working paper” that is personal to the office.

But these cases mean little given Wisconsin law’s broad presumption of access and the narrowness with which courts have interpreted the exemption for drafts.

Based on state case law and guidance from the Wisconsin attorney general, the Wisconsin Freedom of Information Council advises: “Once a document is shown to anyone besides the originator or a person working on his or her behalf, it is no longer a draft.”

Vandersteen stated that redacting his calendar and turning it over was simpler than waging a long legal battle. But that means the issue, and his interpretation, will not be tested in court.

Amodeo said he simply didn’t see the use in withholding his calendar, especially given the negative publicity that could follow: “I mean, if I shut you down and say, ‘No, you can’t have it,’ then you’ll just end up writing something on that. Then everyone starts asking, ‘Well, what does he have to hide?’ ”

Therein lies the absurdity of such a dispute: You don’t need a legal requirement to understand that the public has a right to know what their officials are up to. Erecting barriers to the most basic information is not just against the law — it’s also politically unwise.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Jason Smathers is a reporter with the Sheboygan Press.