Following the settlement of a lawsuit filed against the Madison Police Department for taking more than a year to fill an open records request, the city is working to ensure another delay of this magnitude does not occur.
Assistant City Attorney Roger Allen acknowledged the failure to provide the records in a reasonably timely manner was an accident not indicative of the city’s overall records process.
“The city does its best to track requests and to process them as quickly as our available resources allow,” Allen wrote in an email to The Badger Herald. “This case was an outlier and the processing of this request simply fell between the cracks.”
Isthmus freelance reporter Gil Halsted first made a request in Dec. 2016 and asked MPD for public documents about former officer Steve Heimsness.
Procedure calls for the Records Unit to enter a request into a log once it has been received. The staff then pulls the requested documents and hands them over to a custodian, who reviews, makes any necessary redactions and applies the Balancing Test by weighing public interest favoring disclosure vs. nondisclosure. From there, the custodian releases the records.
According to Wisconsin law, a response to a request must be made “as soon as practicable and without undue delay,” which the Attorney General has defined as 10 working days for simple requests but potentially longer durations for more complicated cases.
After several months of correspondence with Lieutenant John Radovan, who continuously apologized for repeated delays in filling the paid request for 729 pages of documents, Isthmus finally turned to the Wisconsin Institute for Law and Liberty, which agreed MPD had entered and exceeded the realm of undue delay and thus, broken the Open Records Law.
Tom Kamenick, deputy counsel and litigation manager for WILL, filed the lawsuit on Feb. 1, nearly 14 months after the initial records request.
“The length of time it took to prepare the records and get to the redactions was very, very long,” Kamenick said. “[Isthmus] just felt like they were being stonewalled.”
After the lawsuit, MPD immediately turned over the records, which were used in a March 8 Isthmus article titled “Shielded.” Kamenick appreciated the department’s willingness to go on record and accept wrongdoing, which usually does not happen, he said.
Kathleen Culver, University of Wisconsin journalism professor, agreed, admiring how MPD took responsibility for what they stated to be an unintentional withholding.
“What’s interesting about this, is honestly about how blatantly this was a screw-up,” Culver said. “I take the City Attorney’s Office on their word that this was not a purposeful delay, it was something getting lost in the mix — though I think citizens are always right to be skeptical when the government delays releasing information to them.”
For this reason, Culver lauded Wisconsin’s Open Records Law because it gives not only journalists but also the general public the ability to investigate on their own behalf. Though one problematic area of the law, Culver believes, is the vagueness of its wording.
“What is ‘practicable’ is in the eye of the beholder,” Culver said.
Despite this, Kamenick believes Isthmus’ lawsuit would not be enough to reform Wisconsin’s law and make it more similar to those used in some other states that enforce strict deadlines.
Though the settlement did not set any legal precedent, MPD is in the process of improving its accountability, Records Manager Sue Fichtel said.
“We’re setting up a system in which the log is checked regularly, like weekly, for any outstanding requests,” Fichtel said.
Fichtel was unable to comment on the lawsuit itself.
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Moving forward, Kamenick hopes the lawsuit’s success will serve as a wake-up call to the department and a symbolic precedent for future open records requests.
“One of the reasons we exist as an organization is to bring issues like this to light and to make a big deal about them because it happens all the time around the state that records requests — sometimes intentionally, sometimes not — just get slow-walked,” Kamenick said. “We hope that custodians around the state take notice of the fact that people are willing to litigate if necessary, so there is some pressure that records are produced as rapidly as possible and without delay.”