Press and Policy

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.”

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.

“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)

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.

The AG released an updated Public Records Compliance Guide today.  Here’s a link.

This blog has been on an unplanned hiatus for a little over a month.

But, it’s back up and running!

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.

The Milwaukee Journal Sentinel writes today about the possible effects of the Wisconsin Supreme Court’s July 11th ruling that the Beaver Dam Area Development Corporation is a quasi-governmental body subject to Wisconsin’s Public Records and Open Meetings Laws.  Read it here.

“In its July 11 ruling, the court said factors that can be used to determine whether a private corporation is subject to the records and meetings laws are its source of financing; whether it serves a public function; whether it is subject to government control; and whether the public thinks it’s a government entity.”

I’ve asked the Attorney General to file a mandamus action against the West Salem School District.  I also asked the AG to opine on whether or not the school district is complying with the public records law.  Now it’s just a waiting game…

The blog The Political Environment has a nice posting about charges for public records requests. The posting discusses a recent FOI audit by the Waukesha Freeman.