By TODD RICHMOND
The decision marks a major victory for open government advocates and the media amid an intense debate over whether taxpayers or requesters should foot the bill for redaction costs, which can sometimes stretch into the hundreds or thousands of dollars. The court’s four-justice conservative majority implored lawmakers to consider the problem in a pair of concurring opinions.
“It would be helpful if the Legislature were to revisit the cost issues … and determine whether the taxpayers should bear the full financial burden for public record requests,” Justice Pat Roggensack wrote in one of the opinions, “or whether requesters should be active participants in the cost involved in required record (redactions).”
The ruling stems from a dispute between the Milwaukee Journal Sentinel newspaper and the Milwaukee Police Department. The newspaper sued the department after the agency demanded $4,000 to cover staff time spent redacting hundreds of incident reports. The newspaper had requested the records in an investigation into crime data classification.
Milwaukee County Circuit Judge Thomas R. Cooper sided with the city, authorizing it to charge the newspaper for all costs related to complying with the requests, including the redactions. The Journal Sentinel convinced the Supreme Court to take its appeal directly, bypassing the appeals court.
Chief Justice Shirley Abrahamson wrote in a straightforward majority opinion that imposing high fees on record requestors has the effect of limiting access to public documents, which flies in the face of Wisconsin’s open records law.
She noted the law allows record custodians to charge requesters for reproducing, photographing, locating and mailing records. It contains no language that permits custodians to charge for redaction.
City attorneys had argued they could charge for redaction time because it falls within searching for records or reproducing them. They also argued that the Supreme Court ruled in 2002 and 2008 that custodians can recoup all costs. But Abrahamson said custodians can charge only for the four tasks spelled out in the law.
“The statutory text does not allow the imposition of a broad array of fees for any and every cost incurred by an authority,” Abrahamson wrote. “If the Legislature had wanted to allow an authority to impose fees for a broad range of tasks, or if it had wanted to include … redaction as a task for which fees may be imposed, it would have said so.”
Bill Lueders, president of the Wisconsin Freedom of Information Council, praised the decision.
“We believe this affirms not just the letter of the (open records) law but its spirit,” Lueders said in a statement.
Roggensack said the ruling leaves taxpayers on the hook for redaction costs. The Legislature never anticipated voluminous record requests like the Journal Sentinel’s when it mandated redaction of confidential information, she said.
In addition to the requests that triggered the lawsuit, the newspaper has requested about 800 more reports. Milwaukee police say they need $10,000 to cover the redaction costs for that request.
Justice David Prosser wrote in his concurrence that he’s worried the ruling opens the door to malicious, frivolous or unreasonable requests.
A message left at the Milwaukee city attorney’s office Wednesday morning wasn’t immediately returned.
Milwaukee Police spokeswoman Anne E. Schwartz had no immediate comment.
The Journal Sentinel’s attorney, open records expert Robert Dreps, referred questions to managing editor George Stanley. He didn’t immediately return a message.
Attorney General J.B. Van Hollen, a Republican, filed a brief supporting the newspaper. He issued a statement Wednesday calling the decision a “common sense interpretation” of the open records law. Still, he warned requestors to consider the burden government entities must bear when complying with record requests.
Claire Silverman is an attorney for the League of Wisconsin Municipalities, which filed briefs supporting the city. She said Wednesday’s decision means municipalities face huge redaction costs and promised a push for legislation placing the burden on requestors.
“It’s time for the Legislature to revisit the issue of who should pay for the costs of redacting public record requests,” she said. “Taxpayers, or those requesting the records?”
The Freedom of Information Council’s Lueders countered that government bodies have had to redact records for decades and only now are complaining about the cost.
“It is well worth the cost that compliance with the law entails,” Lueders said. “Let’s not weaken our law by letting government officials charge extra for obeying it.”