Proposal in Gov. Tony Evers’ budget would make public records cheaper in some cases

MADISON – Gov. Tony Evers wants to make it cheaper for the public to obtain government documents in some cases, after taking a series of hits for how he’s handled records requests over the last two years.

For decades, government agencies have been allowed to charge those requesting documents for the cost of locating records if that cost exceeds $50. In the state budget he proposed last month, Evers recommended raising the threshold to $100, which would let more people obtain records without having to pay a fee. 

The proposal — hailed by open records advocates — comes after the Democratic governor faced criticism for declining to release emails and getting into expensive legal fights with a Milwaukee TV station and a Republican lawmaker. 

Raising the threshold for when location fees can be charged has long been a goal of the Wisconsin Freedom of Information Council. 

“When the state’s Open Records Law passed in 1981, it stated that custodians could charge only for location fees of $50 or more. The clear legislative intent was to give requesters an initial $50 of free location effort, reserving this charge for larger requests. Adjusted for inflation, $50 in 1981 would be nearly $150 today,” the council notes in its “legislative wish list.”

Evers included the idea in the budget he introduced just before Sunshine Week, which began Sunday and focuses on government transparency and open records and open meetings laws. 

Whether Republicans who control the Legislature will go along with Evers’ proposal to change the state law on location fees is unclear. They will spend the next few months rewriting Evers’ budget. 

Location fees can limit access to records for those who don’t have the funds to pay for them. At least in one case, government officials weighed raising fees to deter people from seeking records. 

John Milotzky, a detective with the Wauwatosa Police Department, told a colleague in a 2016 email that fighting the release of officer Joseph Mensah’s personnel file would be fruitless. Mensah, now a Waukesha County sheriff’s deputy, shot and killed three people in the line of duty during his five-year tenure in Wauwatosa. He was cleared of criminal wrongdoing in all three but resigned in November.

Milotzky added that an attorney had told him “many departments combat the issue by charging a high price to fill those requests, so maybe that’s something to look at in the future,” according to a report last year by the Wisconsin Examiner, a liberal website that has tracked shootings involving Mensah. 

Molly Collins, the advocacy director for the American Civil Liberties Union of Wisconsin, in November called that approach to dealing with records illegal and said it “shows the gross disregard and lack of respect that the Wauwatosa Police Department continues to have for the community it is tasked with protecting and serving.”

Evers in 2019 refused to release a days’ worth of his emails, with his lawyers saying such a request was too burdensome. Evers soon changed course and provided records to the Milwaukee Journal Sentinel, but he continued to decline to give other emails to WITI-TV in Milwaukee and the station sued him

WITI won its lawsuit in November, with Dane County Circuit Judge Stephen Ehlke finding that the governor had to provide the TV station with all of his emails over a certain time frame. Evers’ attorneys had argued the TV station had to make a more detailed request that specified what the emails discussed, not just when they were sent. 

Taxpayers had to pay nearly $19,000 to cover WITI’s legal costs in that case. 

In another legal fight over the records law, Evers last year agreed to hand over 10,000 pages of documents to then-Rep. John Nygren, a Marinette Republican who sued him after Evers said a records request he’d made was too cumbersome. Taxpayers spent $40,000 on legal fees for Nygren in that case. 

Tom Kamenick, a lawyer whose Wisconsin Transparency Project specializes in open records cases, said he liked Evers’ proposal but thought it should go further. Kamenick represented WITI in the lawsuit against the governor. 

“Evers’ proposal is a step in the right direction, but I think we’d be better off without search fees at all,” Kamenick said by email. “It incentivizes custodians to be inefficient in both their record keeping and their searches, and it allows less scrupulous custodians to discourage requests by inflating fees.”

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.