August 1, 2016

Your Right to Know: Supreme Court cases key to openness

Christa Westerberg

Christa Westerberg

Wisconsin’s third branch of government is critical to open government. This year, the Wisconsin Supreme Court will hear three cases involving Wisconsin’s open records law, and could make important decisions involving access to the courts.

The court’s docket starts with a case about whether videos of law enforcement training sessions must be released to the public. The videos were requested from then-Waukesha District Attorney Brad Schimel by the Democratic Party of Wisconsin during the race for attorney general, which Schimel later won.

Lower courts rejected Department of Justice arguments that disclosing the videos would educate criminals about law enforcement practices and harm crime victims, because the information was already in the public sphere and did not identify victims.

The appeals court ruled that the DOJ “neither made the exceptional case required to shield public records from public view … nor overcame the presumption of complete public access to public records.” But the justices have agreed to take another look.

In another politically tinged case, the court will review whether Milwaukee County Sheriff David Clarke can black out information on federal forms used to request that arrested aliens be detained after state custody ends. An immigration rights group sued over these redactions, and lower courts agreed the records should be fully available.

“[I]f it’s helping the public to identify that law enforcement … is violating federal or state law, that’s a pretty strong argument on behalf of [releasing the records],” said the circuit court.

Prior court rulings have recognized the importance of transparency in law enforcement. Let’s hope that view continues to prevail in Wisconsin.

Finally, the court will look at how much information must be revealed when the Department of Justice runs criminal background checks. A Milwaukee man whose name was used as an alias by a convicted criminal sued to block the release of records he said falsely suggested he was a criminal, impairing his employment and housing opportunities.

An appellate court ruled that the open records law did not allow such a claim. But one concurring judge suggested that the Department of Justice’s response was incomplete, because it did not also release an “innocence letter” clearing the plaintiff of the identified crimes. This is a simple fix that is more transparent for all concerned.

The high court also has a role in administering the court system, and in this capacity has encouraged the State Bar of Wisconsin to re-submit a 2009 petition to allow records of certain charges and convictions to be expunged, or blocked from release. The Wisconsin Freedom of Information Council believes these records should remain public.

In recent months, the court has itself stirred concerns by allowing parties in the lingering John Doe case to file entire motions, briefs and other documents under seal; but it rejected an effort by a state district attorney to block the release of records of a disciplinary probe.

The court, which begins its term next month, includes two new justices, representing a fresh chance to reaffirm the public’s right to know.