Sunday, January 30, 2011

More On SPASD Open Records Situation

Roger Fetterly, a resident of the Sun Prairie School District, and a noted scholar on state statutes, recently made a request for documents under the state's Open Records laws. Despite a clear conflict of interest, SPASD DA and Records Custodian Tim Culver denied the request (which would have brought Culver's own proposals to the light of day). The following is text of Fetterl;y's complaint to school board president John Whalen, who again denied his request.

In response to my request of 1/6/11 for records of communications between Tim Culver and the board members, he denied access to those records claiming exemption from an open meeting under Sections 19.85(1)(c) and (e) for reasons of negotiations with the school board and while under review by legal counsel.

First, I want to make clear that my request is to inspect records under Section 19.35 and not for access to a meeting exempt from the open meetings law under Sections 19.85(1)(c) and (e) where so called "negotiations" may take place.

Second, there are no provisions under Wisconsin law authorizing a non-represented employee of the district under Section 111.70 and the board to enter into negotiations regarding his compensation. Neither does the fact that the proposals are under review by legal counsel have any merit. I am not inquiring into any legal counsel you may receive. If the board was authorized to enter into negotiation with a non-represented employee, (which I think is questionable) both parties to the negotiations would be required to exchange proposals, and make them available to the public, in a session open to the public before entering negotiations.

Third, since Tim Culver already provided the board members with copies of an analysis of the 6 proposals, there doesn't appear to be a "competitive or bargaining reason" remaining to continue to withhold access to the records. Providing access to the public to inspect the records would have no effect on Culver or the board's competitive or bargaining considerations. Denial of access to the requested records only has the effect of preventing a persons entitlement " the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information." (S. 19.31)

Finally, I don't think Tim Culver's response to my original request would survive the required balancing test as described in the following Attorney General's Guide to Open Records:
1. The balancing test explained
a. The record custodian must balance the strong public interest in disclosure of the record against the public interest favoring nondisclosure
----. State ex rel. Journal Co., 43 Wis. 2d at 305.

i. The custodian must identify potential reasons for denial, based on public policy considerations indicating that denying access is or may be appropriate.

ii. Those factors must be weighed against public interest in disclosure.

iii. Specific policy reasons, rather than mere statements of legal conclusion or recitation of exemptions, must be given.
----- Pangman & Associates v. Zellmer , 163 Wis. 2d 1070, 1084, 473 N.W.2d 538 (Ct. App. 1991);

Village of Butler v. Cohen, 163 Wis. 2d 819, 824-25, 472 N.W.2d 579 (Ct. App. 1991).

iv. Blanket exemptions will not suffice.

v. The custodian must consider all relevant factors to determine whether permitting record access would result in harm to the public interest that outweighs the legislative policy recognizing the strong public interest in allowing access
-------Wis. Stat. § 19.35(1)(a).

vi. The balancing test is a fact-intensive inquiry that must be performed on a case-by-case basis.
-----Kroeplin,  297 Wis. 2d 254, ¶ 37.

Whalen's written reply appeared to be written by an attorney (gee...another legal bill!).  As with everything else, rather than be open, the district continues to challenge residents to spend money for legal counsel.  The district knows that very few of us can afford to hire an attorney to force the district to present records in a timely manner.

Unfortunately, until enough residents band together, or state district attorneys take notice, the status will remain quite quo.

WisconsinPublic Records Law Wis. Stat. §§ 19.31-19.39