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Guest views: Intent shouldn’t matter in request for open records

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May 15, 2014

As we’ve said many times before in regard to, and in defense of, open records laws, government records are the people’s records. The records belong to the citizens, any citizen, as much as they do the elected official or clerk who has temporary custody.

As such, there is no withholding those records from a citizen who lawfully requests them. Especially not based on what someone in government perceives to be the intent of the person making the request. Which is why a recent state Court of Appeals ruling with regard to government records is troubling.

 The Court of Appeals ruled earlier this month that the Milwaukee School Board acted appropriately when it denied a request for an employee’s attendance and disciplinary records from a man accused of abusing her. The employee had obtained a restraining order against Korry Ardell in the past, and the board said it worried about her safety, The Associated Press reported.  

The appeals court said records custodians rightfully considered Ardell’s history when denying his request. Ardell’s attorney, Rebecca Mason, said that had not been allowed in the past and the decision changed state law.

“We’re setting a precedent where you could have a custodian who doesn’t agree with a media outlet or a particular citizen’s viewpoint and ... deny the request,“ Mason said. “That is not supported anywhere in the case law and it is a slippery slope.“

The woman obtained a restraining order against Ardell in July 2008. He violated it twice by sending the woman text messages, and he served three months in jail. But he was free and the order had expired when he filed his open records request in November 2012.  

Wisconsin law denies access to most public records to people who are incarcerated. The appeals court said Ardell’s history put him in the same category as inmates even though he wasn’t in jail and had never been criminally charged with abuse.

“Ardell’s violent history with the MBSD employee ... align him more closely with the class of persons statutorily denied access to public records for all safety reasons, that is, committed and incarcerated persons,“ the appeals court wrote in a decision upholding a May 2013 lower court ruling. Ardell told The Associated Press he sought the records to show the employee wasn’t credible and that she was abusing sick leave and employee benefits.

While allegations of Ardell’s “violent history“ with the employee are to be taken seriously, we fail to see how Ardell obtaining the employee’s attendance and disciplinary record endangers the employee. But the more far-reaching issue is the precedent set, as we agree with Mason, Ardell’s attorney, that the Court of Appeals decision puts power in the hands of records custodians that they should not have.

If you’re a Republican and the city clerk is a Democrat, is that reason enough for the clerk to deny your open-records request regarding another Democrat? Of course not.

But the Court of Appeals appears to have established a precedent where the city clerk in this scenario is allowed to divine the intent of the request before agreeing to hand over what, again, are the people’s documents. That hypothetical Republican—and, of course, you could reverse the party affiliations—is exercising his or her rights under Wisconsin open-records law to examine government activities for whatever purpose.

At the heart of the idea of the concept of government in sunshine, that government records are the people’s records, is a standing reminder that those in government work for you. You don’t have to have voted for them to remind them of that fact.

—Racine Journal Times



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