Is it time to modernize public records law?

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Roger Allen
April 18, 2008

Wisconsin has a long history of providing the public with access to its governmental records. Indeed, the state enacted the first of its public records laws in 1917.

The current public records statutes were enacted in 1983. Microfilm was the “whiz bang” technology for storing government records in 1983. Other exciting technologies of the day were audiotape, videotape and other electromagnetic tapes. In 1983, a laptop was a TV dinner (you remember them, don’t you?). While the state public records laws have seen some slight revisions since 1983 (dealing with the privacy rights), not one of these revisions has addressed the myriad issues that have arisen with the new and emerging technologies of our day.

State statutes currently provide inadequate guidance to records custodians and citizens alike when applied to these new technologies. For example, what obligation does a records custodian have to preserve metadata, computer systems logs (used by information technology folks on a daily basis to assess systems functions), voicemail, instant messaging, text messaging, or chat room discussions?

What access does a citizen have to easily alterable digital data and records? Must digital records be provided in a digital format if nonreleasable information cannot be securely removed from the digital record? The city of Madison began looking at these issues in early 2005.

After consultation with the Attorney General’s Office, it was determined that the city’s Public Records Ordinance, which was modeled on state public records statutes, was inadequate to provide clear guidance to the public and to the city’s various records custodians. The Office of the City Attorney began the effort of revising Madison’s ordinance. That process employed the following principles:

1. The revisions should reflect the clear policy of openness embodied in the state statutes.

2. To the extent possible, applicable principles of those statutes should be extended to current and emerging technologies.

3. The media and other concerned citizens should have input in the drafting of the revisions.

4. The resulting ordinance should be easily comprehensible to the average user.

Making these revisions has spanned three years. During that time, there have been significant changes in technology, particularly in the ability to retain data from communications where that data was formerly quite perishable. The process to revise this ordinance has included input from city council members, private citizens, news media attorneys and leading editors/publishers of the local news media. This collaborative effort has yielded an ordinance that effectively embraces these new technologies and ensures that the public has maximum possible access to the inner workings of its government.

Undoubtedly, fine-tuning must be done. For example, the city is still examining the correct treatment of text-messaging, an area where the technology has changed during the time the ordinance was being drafted.

It is clear that this process has brought us closer to enactment of a better public records ordinance. Indeed, the proposed ordinance has been shared with municipal attorneys across the state and is being touted as a model for updating the state statutes. The proposed ordinance was introduced Feb. 8 at the Madison Common Council and has been referred to committee while the city attorney’s office fine-tunes the proposal before the full council considers the ordinance.

The proposed ordinance may be found under the Madison city government Web site’s legislative link; it is Legislative File No. 09158.

Roger Allen is a Madison assistant city attorney. Michael May is city attorney. This Your Right to Know column is distributed monthly by the Wisconsin Freedom of Information Council, wisfoic.org, a nonprofit group dedicated to open records and open government.

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