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Sunshine Week spreads light on open records laws

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ANN MARIE AMES
March 16, 2009

One might think reporters are experts on Wisconsin's open records and open meetings laws.


Thanks for the vote of confidence. But "experts" might be a stretch.


Journalists certainly advocate for openness in government. And making requests for documents is a part of our job.


Janesville Gazette reporters collectively filed dozens of records requests in the last year. But it's not something we do every day.


The Wisconsin Newspaper Association pays a group of Madison attorneys to help Wisconsin reporters. If we get stuck with a records request or any other legal issue, we make a call for help.


One case, in particular, contained many lessons for the Gazette staff.


The lessons are worth reviewing this week, Sunshine Week, an annual national event spearheaded by journalists to open a dialogue about the importance of open government and freedom of information.


In August and September 2008, the Gazette sent eight letters and records requests in an attempt to gather information about the weeks leading up to a murder-suicide in Edgerton.


On Aug. 18, police found Jenni Vordermann, 24, and Shaun Vordermann, 25, dead in their bedroom at 39 Mildred Ave., Edgerton. Shaun shot his wife and then himself.


On Aug. 16, Edgerton police took Shaun in protective custody to Rock County Crisis Intervention where he had a mental health assessment. He was deemed mentally healthy and sent to a relative's for the rest of the night.


Because Shaun was in touch with Edgerton and Rock County officials so soon before his death, the Gazette wanted to make sure officials had done their jobs to protect him.


The requests


Gazette staff filed the following requests under the Wisconsin Open Records Law:


-- To Edgerton Police Department Chief Tom Klubertanz for records of prior police contacts at 30 Mildred Ave. Part of the request was fulfilled, although the department did not release the death investigation, stating the case was still "under investigation."


-- To Rock County Communications for 911 calls. That request was fulfilled.


-- To Rock County Human Services requesting Shaun's mental health assessment. The request was denied, as it should have been. A mental health assessment is not an open record.


-- To Rock County Communications requesting tracking information from the Edgerton squad car that responded Aug. 16 when Jenni reported her husband was suicidal. According to police documents, the car drove Shaun to Edgerton Hospital and Health Services and to crisis intervention.


The request was fulfilled, but the documents were incomplete. We couldn't use them.


-- A second request to the Edgerton Police Department for the complete death investigation records. As advised by a newspaper association attorney, the letter stated that "under investigation" is not by itself a valid reason to deny a records request. Courts have ruled that police can withhold only information that would jeopardize their investigation.


The request again was denied.


-- Shaun's mom, Nancy Haferman, wrote a letter to crisis intervention requesting copies of Shaun's mental health assessment. State law gives Haferman the right to the document, even though the document is not an open record.


-- Haferman wrote a letter to the Edgerton Police Department requesting a copy of Shaun's emergency detention paperwork. Again, this isn't an open record, but as Shaun's mom, she has a right to it.


The document was never produced.


-- In September, the Gazette wrote a letter to the Rock County District Attorney David O'Leary asking him to demand that the Edgerton Police Department release the final results of the death investigation to the public.


Two weeks later, Klubertanz agreed to an interview with the Gazette.


Open record requests


Janesville Gazette reporters filed dozens of requests under the Wisconsin Open Records Law in the past 12 months. Here is a sample:


March 28, 2008

Requested from: Clinton School District


What was requested: Records pertaining to a Clinton janitor fired for violating school policy


Why: The school board had a few conversations in closed session about an employee, but it wasn't clear who it was. Then the district fired a janitor after an internal investigation. The investigation was prompted by an "inappropriate note" the man left on a student's desk.


Was the request filled: After following due process and giving the janitor the chance to contest the request, the district mailed the records to the Gazette. The documents included interviews conducted by school officials, memos written by teachers and administration and a photocopy of the note written by the janitor.


The janitor was fired for violating school district policy. A Rock County Sheriff's Office investigation did not find any criminal activity took place.


April 1, 2008

Requested from: Beloit School District


What was requested: A copy of the notice of claim filed by a Beloit Memorial High School cheerleader who broke her arm during practice.


Why: For a story April 4 about the need for better regulation that would come if cheerleading was made a sanctioned sport.


Was the request filled: Yes, although it arrived in the mail about two weeks after the story published.


April 7, 2008

Requested from: Lake Geneva Police Department


What was requested: Copies of complaints filed by candidates, supporters and city employees stemming from the April 1 election in Lake Geneva.


Why: For a May 5 story about the investigation into the complaints.


Was the request filled: Yes. The Gazette received copies of complaints, which detailed allegations of campaign finance violations, voter tampering, slander, libel and misuse of police officers.


July 16, 2008

Requested from: City of Milton and Milton Police Department


What was requested: Names of finalists for Milton police chief


Why: The Gazette received a news release saying the police commission had chosen a new police chief even though the finalists had not been announced. State statutes require public bodies to release names of finalists for government jobs. When the Gazette asked for the names, the newspaper received five even though there were six finalists.


Was the request filled: Yes. The Gazette received the name of the sixth candidate July 23.


July 28, 2008

Requested from: Rock County Communications


What was requested: An audio recording of a 911 call from an injured man who had spent more than 24 hours lying near an Interstate 90/39 ramp.


Why: Reporters don't get to write happy endings often enough. The morning of July 28, newsroom staff heard Rock County dispatch emergency responders to Highway 14 off ramp. Milton resident Devin Elmer managed to call 911 from his cell phone after spending more than 24 hours passing in and out of consciousness after crashing his motorcycle.


Was the request filled: Yes, almost immediately. By the afternoon, the communications center sent a CD of the audio from Elmer's 911 call.


Aug. 28, 2008

Requested from: Walworth County Sheriff's Office


What was requested:


-- Copies of police reports filed after an election-related incident March 29 in which police were dispatched to a Lake Geneva restaurant to identify a woman who found a cartoon that made fun of then-candidate Bill Chesen's college degree.


-- A copy of the letter Assistant District Attorney Diane Donohoo sent to the sheriff's office addressing Chesen's complaint that the cartoon was defamatory.


Why: For a Sept. 19 story about the decision by the Walworth County District Attorney's Office not to file charges against those implicated in the incident.


Was the request filled: Yes, but the Gazette had to wait about two weeks for a copy of the letter, which was dated Sept. 9.


Sept. 3, 2008

Requested from: Walworth County Sheriff's Office


What was requested: Copies of police reports filed after an election-related incident March 30 in which Delavan Alderman John Finley threatened Eli Nieuwenhuis of Nieuwenhuis Bros. for "stealing" Finley's campaign signs.


Why: For a Sept. 5 story about the decision by the Walworth County District Attorney's Office to cite Finley for disorderly conduct.


Was the request filled: Yes, the Gazette received copies of reports, which included a transcript of the message Finley left on Nieuwenhuis' answering machine.


September 2008

Requested from: City of Whitewater


What was requested: The amount of money the city of Whitewater paid to settle a civil rights lawsuit.


Why: Stephen D. Cvicker, 56, former owner of Whitewater Rock and Mulch, had sued former police detective Larry P. Meyer, 61, in May 2005, alleging wrongful arrests, improper searches and harassment of his Latino employees.


When the lawsuit was settled, the city refused to release the amount of the settlement, claiming it was confidential.


Was the request filled: Yes. The city paid Cvicker $115,000, but it didn't admit to any wrongdoing or liability in the settlement agreement.


Nov. 10, 2008

Requested from: Walworth County Sheriff's Office


What was requested: Copies of police reports filed in regard to the "Friends of Mayor Mel" ad that ran in advance of the April 1 election in Delavan.


Why: For a Dec. 12 story about Illinois developer Herbert Golding, who pleaded no contest to failing to properly identify himself as the sponsor of the ad.


Was the request was filled: Yes, although the Gazette had to wait several weeks for the records after learning of the decision by the Walworth County District Attorney's Office to cite Golding.


Dec. 9, Jan. 29, Feb. 20, March 5 and 6 and ongoing

Requested from: Village of Darien, Walworth County Sheriff's Office


What was requested: Various law enforcement reports and village documents.


Why: Citizens and officials keep filing complaints. The sheriff's office keeps investigating. Someone put cameras in the police department, and for a while nobody knew who did it.


The focus of the requests has been for documents surrounding the suspension and then firing of Darien Police Chief Steve DeVoy. DeVoy was suspended on Dec. 1 after a village employee found surveillance cameras in the police department.


Was the request filled: Yes, with hundreds of pages. The hard part, as is often the case with records requests, is knowing what to request. For example, the initial two requests sent Dec. 9 asked for copies of reports about a complaint against President Bob Metzner and copies of reports about complaints filed against any other village official or employee.


The second part of that request was too broad and therefore was not filled. Many of those documents trickled in as part of other requests.


The Gazette has gotten copies of reports from sheriff's office investigations into allegations of insurance fraud and open meetings violations.


At the end of January, the Gazette pre-emptively requested the investigative documents related to the village's investigation into the cameras. That request turned out to be too broad, so a second request was made for documents presented to the board by village attorneys.


The request is on hold while attorneys debate the letter of the law.


DeVoy's attorneys as well as village attorneys are going by the rule that employees have the right to contest the release of personnel records.


Attorneys for the Wisconsin Newspaper Association say DeVoy's position as police chief exempt him from that rule.


As it stands, DeVoy's attorneys contend he has until Thursday to contest the Gazette's request. If DeVoy denies the release of the documents, the matter likely will go to court.


Jan. 27, 2009

Requested from: Janesville School District


What was requested: Documents relating to a question posed by school board President DuWayne Severson to then-Superintendent Tom Evert, about whether any school district employee had expressed interest in working for Studer Group, a management-consulting firm that is donating its services for a school-improvement plan.


Why: Evert had responded "no" to the question, and there was concern about Evert's relations with the school board.


Was the request filled: Yes. Copies of e-mails revealed Evert had discussed the possibility of working for Studer Group as far back as 2007, although apparently there had been no recent discussions.


Jan. 28, 2009

Requested from: Janesville School District


What was requested: Documents relating to the Parker High School track and field rebuilding project.


Why: School board member Tim Cullen had raised questions about the bidding process, and business services director Doug Bunton had said standard practice was for bid openings to be open to the bidders and that a school district employee is always present.


Was the request filled: Yes. Documents showed bids were opened at the Stevens Point office of the project designer without any school district officials present. The documents also showed that bids were to be "privately opened." Bunton said he wasn't aware of that at the time and that the incident violated his office's longstanding practice.


Feb. 12, 2009

Requested from: Janesville School District


What was requested: Documents relating to the unexpected early retirement of then-Superintendent Tom Evert.


Why: The board had held a series of closed meetings before announcing that Evert was retiring. Board members' comments indicated there was a communications problem between them and Evert, but they gave few details.


Was the request filled: Yes, in part. Communications between the board and its attorney were not released. Attorney David Moore said those communications could be kept secret because they are protected by attorney-client privilege. The Gazette's legal adviser said such communications could be revealed only if the board voted to allow it. Documents that were disclosed showed that Moore and Evert's attorney had negotiated the language of the separation agreement, but those drafts did not give any more insight into the events leading to Evert's departure.


February 2009

Requested from: Janesville School District.


What was requested: A copy of minutes of the closed school board meetings mentioned above.


Why: Same as above.


Was the request filled: Not yet. Moore indicated the minutes do not reflect the board's discussions because a record of those discussions is not required by law.


February 2009

Requested from: Rock County Coroner's Office


What was requested: A copy of all documents on heroin-related overdose deaths in Rock County in 2008 and 2009.


Why: The records were sought to gather information for a series of stories about the growing heroin problem in Rock County.


Was the request filled: Yes and no. The coroner's office released the records on four of the six heroin overdose deaths in 2008. Records from the two other overdose deaths, including names and ages, were kept from the public because they remain under investigation.


March 3, 2009

Requested from: Walworth County Sheriff's Office


What was requested: Copies of police reports filed regarding a Feb. 15 incident in which two nurses at Mercy Walworth Hospital and Medical Center reportedly took a picture of a patient's X-ray and talked about it online.


Why: For a March 5 story about the investigation by the sheriff's office, which resulted not in criminal charges but in notification of federal authorities who oversee enforcement of federal patient privacy laws.


Was the request filled: Yes, within two days.



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