Anyone interested in holding government accountable should applaud a decision this week by the state appeals court about open records.
The court upheld a lower court ruling that a public official must provide electronic information such as an email in its original form when requested.
That’s important for a couple of reasons.
First, officials across the state have for years charged the public so they could turn a profit for access to public records — which state law expressly prohibits — by providing only paper copies of emails. Despite a directive sent last year across the state by then-Attorney General Brad Schimel saying records custodians can charge only actual costs for paper copies — which he determined to be about a penny a page — many governments continue to charge $1.25 a page.
That’s illegal. And this week’s ruling makes clear that if an original record is digital, it must be provided in digital form. So instead of charging $125 for 100 pages of printed emails, the government should simply download them onto a thumb drive at almost no cost.
Equally important for journalists is that an electronic version of an email — or photo, or video — allows analysis that isn’t possible with a printed or analog version. Metadata embedded in an email can tell you who actually composed it and where it originated. Enhancement of digital video or audio can bring out details and clarity that cannot be achieved with analog copies.
For most of us, the most important and impactful part of the decision is about those paper copies.
The suit was brought by Bill Lueders, whose name some readers will recognize because we’ve quoted him before. He’s president of the Wisconsin Freedom of Information Council, and he filed a 2016 request for emails between state Rep. Scott Krug, R-Nekoosa, and his lobbyists and constituents.
Krug provided only paper printouts, prompting the lawsuit — which was joined by the Wisconsin Institute for Law and Liberty.
“Public officials must stop playing games with record requests,” WILL’s open government expert Tom Kamenick said after this week’s ruling. “Copying an electronic file onto a flash drive or sending it via email is cheap and easy, and there is no reason to waste time and taxpayer resources printing out emails one at a time. We’re pleased the court of appeals agrees and we hope Rep. Krug accepts the decision and doesn’t continue fighting a hopeless battle.”
One other important thing to note about WILL: It filed a similar lawsuit in 2018 against state Rep. Jonathan Brostoff (D-Milwaukee), who turned over printed copies of thousands of emails to WILL — and charged it more than $3,200 for those records.
When WILL filed the suit, Brostoff immediately capitulated and turned over electronic versions of the emails — and had to pay all of WILL’s legal fees.
The ruling should put state and local officials on notice: Charging the public for access to public records either to make a profit or deter the public for seeking information has to stop. And if it doesn’t expect more lawsuits and legal bills.
Peter J. Wasson is managing editor of the Ashland Daily Press.