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Digital age brings new questions to records law

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David Bretl
April 10, 2013

I always jump the gun on spring. Frustrated by months of snow and cold, I do my best to bring about spring through a combination of neglect and positive thinking. My driveway, which becomes narrower throughout the month of January, is an example of the former. Around Valentine's Day I give up shoveling, altogether, convinced that the snow will melt in a week or so. Wishful thinking is illustrated by the multiple crops of pale, spindly tomato plants that I attempt to grow under fluorescent lights, throughout the late winter. The few plants that actually make it outside wind up dead, because, true to form, I plant my garden well before the first frost. Fortunately, the snow has been slow to melt this spring or I probably would have mowed the lawn a few times by now.

Included among all of the usual spring activities that I addressed prematurely, this year, was Sunshine Week. Sunshine Week has nothing to do with the dreary weather we've been experiencing, but rather, focuses on transparency in government. During this week, which kicked off on March 10th, newspapers often test the openness of state and local government in terms of the access they provide to documents and meetings. About a month before Sunshine Week, I wrote a column covering a couple of key court decisions interpreting Wisconsin's public records law. Before the ink on that column was dry, a number of additional issues pertaining to public records emerged. Had I simply waited to write about the topic at the proper time, I might have been able to cover all of these points in a single column. On the other hand, writing that first piece when I did might just have shaved a few weeks off of winter. Those aspects of records law that merit additional attention include the following:

Cost for redactions. I previously wrote about a Wisconsin Supreme Court decision that addressed the costs of redacting confidential information from documents that are the subject of a records request. In that case, Milwaukee Journal Sentinel v. City of Milwaukee, the Court held that government record holders may not charge a requestor for the time spent by staff blackening out or "redacting" legally protected information from documents containing both confidential and public information. While deciding in favor of free access to the un-redacted information, a majority of the justices expressed concerns regarding the demand that the law might place on government. They suggested that their hands were tied, however, and it would be up to the legislature to change the law if a different outcome was desired. Shortly after that decision was announced, 2013 Assembly Bill 26 was introduced. It is a very concise bill that, simply, authorizes records custodians to impose a fee "for the actual, necessary and direct cost of deleting, redacting, or separating information that is not subject to disclosure."

For-profit use of records. An issue that concerned Justice Prosser in the Milwaukee Journal Sentinel case was the prospect that for-profit enterprises could "mine" public data at taxpayer expense. He was correct, although redaction is only a small part of the issue. Most of Wisconsin's public records law dates back to the early 1980s when manila file folders and copy machines were state-of-the-art technology. Then, there were really only two ways to see a record: stop by the government office and look at the file or order a photocopy. Looking at the file was typically free. If copies were requested, a per-page fee was charged. Modern imaging and computer technology now raise issues that cannot readily be answered by a manila folder law. What is the cost of a one-thousand page "PDF" document that already exists on a city's computer server? Since labor generally can't be recovered, a good argument can be made that the cost of the document is low or certainly less than the fifteen or twenty cents per page that many governments charge for photocopies. Postage was always easy to figure out, but what about the cost of attaching the records to an e-mail? Is an email response even adequate or might a city be required to directly upload files to a website maintained by a records' requestor?

Records retention. One issue that is typically accepted, without question, by those seeking records is the length of time a government is required to retain a particular document. Working hand-in-glove with the public records law are records retention statutes. These laws mandate the length of time that hundreds of different types of records must be kept, ranging from a deed (forever) to meeting minutes (seven years). If the public records law was written during the era of filing cabinets and copy machines, the state's records retention ordinances derive from a time when documents were stored in the homes of public officials. Most of what local government does will never be destined for the Smithsonian. Given that the cost and logistics of storing documents have radically changed in recent years, however, a case can be made for the review of these laws, as well.

I've seen a number of editorials critical of Assembly Bill 13. If I ran a newspaper business, I would have the same reaction. From my perspective, however, the redaction issue misses the larger point. Our state's records laws are in need of an overhaul. Photocopy and postage fees, or even the time spent for inspecting records in person, caused record requestors to think carefully about the volume of records they sought. If the law doesn't recognize the cost of managing digital information in a similar way, taxpayers will be the ones paying the bill.



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