Court keeps BBE information under wraps

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A brief phone call or letter is often all that is needed for people to access arrest records or find out who signed a recall petition.

Wisconsin’s open records law lets the public tap into information, sometimes controversial or embarrassing, without disclosing the intent behind the request.

But Madison attorney Steve Levine had to petition the state Supreme Court to obtain the names and addresses of the 209 people who took the Wisconsin State Bar exam in July. He said he wanted the information so he could conduct a survey of those who took the exam with the goal of getting feedback on any improvements or changes that could be made to the test-taking process.

The roadblock between Levine and the information stems from a 1976 Wisconsin Supreme Court decision and Wisconsin Department of Justice policy exempting courts and judicial agencies from the open records law.

Any requests for documents, personnel files or confidential records are released at the discretion of the Supreme Court.

On Wednesday, the justices denied Levine’s request and determined the Board of Bar Examiners, which retains bar exam applicant data, isn’t obligated to abide by open records or open meetings laws.

“All I asked for was a list of names,” Levine said, “with no designation of who passed or failed.”
The decision, he said, perpetuated the Supreme Court’s trend of limiting transparency to shield itself from public scrutiny.

In February, the court voted to exclude administrative matters from discussions held in public. The 4-3 decision, spearheaded by Justice Patience Roggensack, ended a 13-year run of deciding administrative issues in open conference.

Levine unsuccessfully petitioned the court in 1999 to force the BBE to abide by open records and open meetings law and acknowledged that his most recent attempt was ill-timed.

“I just think the court, given its current makeup,” he said, “is very reluctant to do anything that might subject itself to the open records laws.”

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Still, he questioned the logic of the court as to why it wouldn’t hold the BBE to the same transparency standards that other state regulatory boards adhere to under open records law.

During discussion Wednesday, Justice Ann Walsh Bradley considered Levine’s argument and whether having the BBE conform to open records law would be in the best interests of the agency.

Bradley said she struggled with the rationale behind not holding the BBE to the open records standard.
“I just don’t see why they can’t be subject to similar provisions,” Bradley said.

Chief Justice Shirley Abrahamson and Bradley did not vote in favor of denying Levine’s petition.
But Roggensack said she was reluctant to require BBE to abide by open records law, because it would have likely meant that other court agencies, such as the Office of Lawyer Regulation, would also be subject to the law.

That isn’t a door she wanted to open.

“I think there are a number things our agencies deal with that are confidential,” she said. “For example, complaints are filed against lawyers by clients that are simply unhappy with a decision.”

But judicial pundit and Marquette University Law School Professor Rick Esenberg said it wasn’t surprising that the court wanted to keep the BBE information under wraps, though not necessarily because of any internal disagreements between the justices.

The nature of the information, he said, to include character and fitness evaluations and exam applications, is often very personal and confidential.

“You could say there is a greater public interest in knowing if someone has been arrested or convicted of a crime or has made a campaign contribution,”  Esenberg said, “then knowing whether someone took and didn’t pass the bar exam.”

On its website, the BBE advertises confidentiality throughout the bar exam application process. Agency director Jacquelynn Rothstein said releasing names of prior test-takers would betray that confidence.

Last September, the BBE denied Levine’s request for the names and addresses of the July test takers.

Going forward, she said that forcing the BBE to disclose who failed exams would have had an adverse impact on graduates’ ability to land jobs, if and when they did pass.

“Would you want to put out the number of times you took the exam?” she said. “That could affect one’s ability to get hired and could affect whether someone chooses that particular attorney to represent him or her.”

Of the 209 people who took the bar exam last July, 177, or 85 percent, passed.

Rothstein said the BBE is transparent to the extent that the Supreme Court allows. That includes holding public board meetings and making the names of graduates who pass the bar available when they are sworn-in.

During Wednesday’s discussion of the matter, Abrahamson questioned Levine about whether applicants have a right to confidentiality until they pass the exam.

“I may not want my mom to know I failed,” she said, “so I may not want her to know I took the exam.”
But had he gotten the information, Levine said he had no intention of advertising it to the public or posting it online.

Rather, he wanted to survey test takers on the exam process and solicit feedback on any changes or improvements that could be made.

“The choice should be up to the public,” Levine said, “not a government agency.”