Lawsuit against UWM
I’ve been doing a terrible job at keeping this blog current, and while I realize that probably no one actually reads this thing, I think it’s important to briefly note, just for the record, yesterday’s news: the lawsuit against UW-Milwaukee. On Tuesday, the UWM Post and I filed suit (with the assistance, of course, by excellent counsel at Godfrey & Kahn and the Student Press Law Center) against UWM seeking the release of records that were denied release, in part, by the university because of [its interpretation of] the Family Education Rights and Privacy Act (FERPA), a federal student privacy law. Click here for a PDF of the complaint, here for Journal Sentinel coverage, here for the SPLC press release, and here for the Badger Herald article.
UWM would have you believe that FERPA was enacted by Congress to keep private the personally-identifiable information of students who sit on, and indeed lead, a powerful university governing body that allocates state resources and formulates/reviews university policy, where there is absolutely no direct or even indirect connection to the academic life of a student. But UWM is flatly wrong; the way it’s applying FERPA is not what Congress intended and in fact, it is impinging on the public’s ability to keep public institutions of higher education accountable — to students, taxpayers, and citizens. Just ask the original sponsor of FERPA, former U.S. Senator James L. Buckley, who said this to the Columbus Dispatch: “Things have gone wild,” Buckley said. “These are ridiculous extensions. One likes to think common sense would come into play. Clearly, these days, it isn’t true.”
So, before I head to class this morning, I leave you with a line I think is timely from the SPJ Code of Ethics: “Journalists should…recognize a special obligation to ensure that the public’s business is conducted in the open and that government records are open to inspection.”
Wednesday was a big day
This past Wednesday (April 15) was an important day for me, the college press and open government in Wisconsin. Why? I’ll explain via timeline:
10:45 a.m.: Watched oral arguments in Madison at the WI Supreme Court for Journal Sentinel v. Wis. Dept. of Administration, the public records law case examining whether a collective bargaining agreement for some state employees that says the names of employees cannot be released to the media trumps Wisconsin’s Public Records Law. (Here’s the court of appeals certification, RCFP amicus brief, and Journal Sentinel coverage) The opening of the newspaper’s argument included reference to the Wisconsin Supreem Court case County of Jefferson v. Besley – which is said to be the nation’s first freedom of information law. I first learned of this case while reading a Marquette Law Review article on Wisconsin’s public records law this past fall. Here’s the pertinent part:
“In 1856 the Wisconsin Supreme Court declared that wood for heating and candles for lighting must be provided so that citizens could comfortably transact business and examine all books and papers required to be kept in the clerk of court’s office.” – Linda de la Mora, The Wisconsin Public Records Law, 67 Marq. L. Rev. (1983); County of Jefferson v. Besley
The controversy was so basic back in 1856: heat and light. Today, the issues are about e-mail retention systems, e-meetings, and whether e-mail is a proper form of filing a records request. Anyway, the newspapers introduced their argument with this case, and I couldn’t help but smile. (Here’s some background info on the Besley case. I also randomly quoted it in an earlier blog post.)
12:25 p.m.: Delivered the request for a formal attorney general opinion and met with three attorneys from the AG’s office. It was supposed to happen at noon, but court ran late. The request asked the attorney general if student government organizations’s at UW System institutions are subject to Wisconsin’s Public Records and Open Meetings laws.
The rest of the afternoon: The AG request cultivated a solid amount of media attention, thus I was fielding phone calls from interested reporters. Thank you AP, Wisconsin State Journal, Journal Sentinel Education Blog, Wisconsin Public Radio, Daily Cardinal, Badger Herald, Student Press Law Center, PantherVision, UWM Post, and NFOIC for coverage! I at least know the AP story was printed in the Wisconsin State Journal because I picked up a copy, and it also ran in the Green Bay Press Gazette (my parents are holding on to one for me). Most of the distribution, though, was probably online.
WIAA sues Appleton Post-Crescent, Wisconsin Newspaper Association
The WIAA (Wisconsin Interscholastic Athletic Association) and several broadcast television stations have filed a lawsuit against the Appleton Post-Crescent (owned by Gannett Co.) and the Wisconsin Newspaper Association for “violat[ing]…the exclusive rights and ownership of the WIAA.”
The lawsuit claims that the Post-Crescent infringed on the exclusive media rights owned by the WIAA for streaming live video of a high school football game on its Web site in November. The WIAA says the video stream “constituted an entertainment event” and is now asking a Portage County judge to declare that the WIAA has the right to “control the transmission, Internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction of any game, game action, game information, or any commercial used [sic] of the same of an athletic event that it sponsors.” In addition, the WIAA wants the court to order that it has the right to “grant exclusive rights to others, including the plaintiffs named pursuant to Wis. Stats. § 803.03 for tournament events that it sponsors.”
According to the Post-Crescent’s story about the suit, this issue has been brewing since 2007 from other disagreements between the WIAA and the media. The complaint says the Wisconsin Newspaper Association’s attorneys sent a letter to the WIAA in late October 2008 “challenging the WIAA’s right to control Internet streaming and challenging the WIAA’s authority to grant exclusive coverage rights to its sponsored events.” The suit was filed on December 5, but there is no information as to why the story is just coming to light now.
The WIAA is being represnted by Stevens Point-based Anderson, O’Brien, Bertz, Skrenes & Golla. Online court information of this case was not available at the time of this posting, but the records of the entire case file have been requested.
- Milwaukee Journal Sentinel report
- AP report
- Wisconsin Law Journal report
- Wausau Daily Herald report (including an interesting note about how this could affect the high school press)
- National Press Photographers Association report
UPDATE: Wausau Daily Herald (owned by Gannett Co.) runs editorial in defense of the Post-Crescent:
Whether a blurry figure in the background, blocking for the quarterback as he threw a pass that led D.C. Everest to victory, or a name in the box score — one hit, one walk, two RBIs — of a Wausau West softball game recap, or even a front-page photo of Mosinee teammates celebrating with a trophy at state, that clipping probably got saved in a scrapbook or stuck to the family fridge with a magnet.
These are the moments of life that a community newspaper is tasked with capturing; the stories that we tell to our readers. They are the texture of central Wisconsin, inasmuch as school sports help define us and anchor us.
They are not the property of the Wisconsin Interscholastic Athletic Association. They are our property — the people of the cities and towns that newspapers across the state journal every day.
But not according to the WIAA.
CFAF: FCC said ban would “constitute a prior restraint”
A judge has upheld a ban on radio ads sponsored by the Coalition for America’s Families, the Milwaukee Journal Sentinel reports.
In a press release issued Sunday morning, the Coalition for America’s Families (CFAF) said Jackson County Circuit Court Judge Thomas Lister was told by the Federal Communications Commission that a temporary restraining order against radio stations would be unconstitutional. Here’s an excerpt of the press release:
“Judge Lister said he was informed that an action was headed his way early Friday afternoon at which time he contacted the FCC. The FCC informed the Judge that a temporary restraining order against the radio stations would constitute a prior restraint of free speech and would therefore be unconstitutional.”
However, the temporary restraining order is not against the radio stations, but is instead against CFAF.
The CFAF is also arguing that Radcliffe does not have the authority to seek civil relief under Wis. Stat. § 12.05. The press release appears to include a portion of CFAF’s motion:
8. The entry of this ex parte temporary restraining order at the request of a private party is unprecedented given that Wis. Stat. § 12.05 is not a statute that provides for civil relief or a private cause of action. Instead, it is a statute that must be initiated and prosecuted by the State. “[T]he decision to prosecute a possible violation of a criminal statute is ordinarily within the discretion of the District Attorney or the Attorney General.” Tatur v. Solsrud, 174 Wis.2d 735, 744 (1993) (examining and rejecting civil application of Wis. Stat. § 12.05).
Update: (2:04 p.m.) Assembly candidate Mark Radcliffe has released a statement in response to today’s ruling, which can be found here. An excerpt:
“Upon hearing their false ad I decided to draft and file an action against them asking the court to preserve my rights against such false statements. I am a solo practicing attorney and as such have always fought for the rights of those who otherwise wouldn’t have a strong voice.”
Isn’t this prior restraint? And isn’t it unconstitutional?
The Milwaukee Journal Sentinel is reporting that a Jackson County judge has temporarily ordered a stop to political radio advertisements being run by Middleton-based Coalition for America’s Families. The ads attack Assembly candidate Mark Radcliffe, a Democrat.
Here’s a link to the story. The Journal Sentinel writes:
“A judge’s apparently unprecedented decision Saturday to order a halt to political ads before hearing from the ad’s sponsors drew immediate criticism as an unfair restraint of free speech.”
Jackson County Circuit Court Judge Thomas Lister said the Coalition for America’s Families likely violated Wis. Stat. § 12.05, which says that “No person may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” Lister also said it is likely that the Coalition for America’s Families “has made false statements with actual malice regarding plaintiff (Radcliffe).”
Lister is defending his ruling. He’s quoted in the Milwaukee Journal Sentinel as saying:
“The law, I think, called for it.”
On Saturday night, the Associated Press filed a wire story as well, including comment from Coalition for America’s Families’ spokesman R.J. Johnson. The AP quotes Johnson:
“We are immediately filing an appeal to protect our Constitutional right to discuss ideas of public importance freely and without government interference,” Johnson said in the statement. “That the judge has chosen to protect a partisan political ally at the expense of the U.S. Constitution is unconscionable.”
Assembly Democratic Campaign Committee Director Jim Smith hailed the ruling in a press release sent out on Saturday.
“This is a historic day for clean elections in Wisconsin,” said Smith. “I am asking all media to immediately take heed of the temporary restraining order issued by Judge Lister this morning and stop playing these false ads.”
A hearing on the matter is expected to take place on Sunday.
- Download a copy of the Temporary Restraining Order
- Download a copy of the letter sent from Radcliffe’s attorney to radio stations
- WisPolitics.com: Coalition for America’s Families press release
- WisPolitics.com: DPW press release
- WisPolitics.com: RPW press release
County of Jefferson v. Besley
“In 1856 the Wisconsin Supreme Court declared that wood for heating and candles for lighting must be provided so that citizens could comfortably transact business and examine all books and papers required to be kept in the clerk of court’s office.”
From: Linda de la Mora, The Wisconsin Public Records Law, 67 Marq. L. Rev. (1983)
West Salem update
In late July, I asked the AG to file a mandamus action against the West Salem School District, as well as to opine on whether or not the school district should release the records I requested.
On August 19, the AG’s office responded, declining to bring a mandamus action.
The response read, “It certainly is possible that an investigation continues even after an employee is terminated. It is possible, therefore, that section 19.36(10)(b) is still applicable.”
The letter goes on to say that whether or not the school district is continuing an investigation is a factual issue, although the attorney who wrote the letter said that the AG’s office is not in a position to make such a determination.
The Coulee News reported on Saturday that John Smalley is scheduled to return as principal on September 9- tomorrow. Here’s an excerpt from the article:
A school district press release said the board’s decision to fire Smalley “was made on the advice of legal counsel and based on that legal counsel’s representations regarding the investigation he conducted. That investigation was not complete. Soon after the termination decision, the school board learned that it had received erroneous legal advice regarding its decision.”
After the school board learned of the problem with the legal advice, the board reinstated Smalley, reimbursed him for the salary and benefits he would have received and placed on him on paid administrative leave. Meanwhile, the district hired a new attorney, who advised the school board have an attorney investigate the facts and evidence related to Smalley.
The Coulee News reports today that some parents are planning to protest Smalley’s return.
They [parents] will be keeping their elementary-age children home from school and walking a picket line in front of the school to object to John J. Smalley’s return, said Tammy Gensch, a member of the group and parent of an elementary and middle school student.
And here the La Crosse County DA said this matter wasn’t of public concern.
I don’t have an opinion of Mr. Smalley because I don’t know all of the facts. I wonder, though, how he and the rest of the school district will adjust after such a contentious fight.
Updated Compliance Guide
The AG released an updated Public Records Compliance Guide today. Here’s a link.
Back up and running
This blog has been on an unplanned hiatus for a little over a month.
But, it’s back up and running!
FOI in the news 07-28-08
The Associated Press is reporting that Gov. Doyle interviewed the finalists in the running to be chancellor of UW-Madison. The AP utilized Wisconsin’s Public Records Law to obtain the Governor’s schedule which noted the interviews.
