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State lawmakers should stop dodging open-records law

Wisconsin added another chapter to its litigious history of skirmishes with lawmakers over releasing copies of public records under the state’s open-records law last week.

The last two rounds of dispute have been over whether lawmakers can insist on releasing paper copies of records or if they should release them in an electronic format — such as an email, a CD or thumb drive or a file-sharing website.

This time it was state Rep. Jonathan Brostoff, D-Milwaukee, who was in the news when he backed down in a fight with the conservative Wisconsin Institute for Law and Liberty and said he would provide copies of his emails related to occupational-licensing regulations — which WILL has been seeking to overhaul.

Brostoff had originally told the legal and research group it would cost them $3,240 for printed copies of thousands of pages of email records. WILL sued. In the settlement announced last week, the records will be provided electronically and state taxpayers also will pick up the tab — $1,822 — for WILL’s legal fees.

Earlier this year, a Dane County judge had ruled a Republican state lawmaker, Rep. Scott Krug of Nekoosa, must supply electronic copies of records related to state policies on water that were sought by Bill Lueders, president of the Wisconsin Freedom of Information Council and the managing editor of the left-leaning Progressive Magazine.

Krug, too, tried the paper dodge, saying he would provide the records — hundreds of pages — but there would be a per-page fee charged before they were released. Lueders also sued, and in January Circuit Judge Rhonda Lanford ruled that, while lawmakers have yet to set a specific standard for electronic records, that “if a requester indicates that his ability to access the record would be best served by a particular format of copy, the custodian should produce the copy in that format unless doing so would be so burdensome as to be inconsistent with the conduct of government business.”

But state Attorney General Brad Schimel appealed the Krug ruling in March and it is now before the District 2 Court of Appeals in Waukesha.

A Schimel spokesman said last week the Brosthoff case was settled to minimize costs, while the underlying issue on electronic records is addressed in the Krug case.

So, paper or plastic? The real underlying issue in both the Krug and Brostoff cases is that state lawmakers sometimes, usually for political purposes, don’t really want to release state records or an email trail that are legitimately being sought by citizens and interested parties. So they throw up a roadblock of paper fees to discourage requests for information.

While some requesters will go ahead and seek the records anyway, others — particularly individual citizens or low-budget citizen groups — can find the prospect of several thousand dollars in paper fees to be an insurmountable obstacle.

That is not how Wisconsin’s open-records law should work.

The simple fact is that electronic records are cheaper to produce, easier to use, provide more megadata information and often are able to be searched in a manner that is much more useable to the public.

Wisconsin lawmakers and state agencies have recognized this for years in their attempts to have the public apply electronically to request licenses and renewals in a wide array of areas — from vehicle registration to hunting and camping and all sorts of other things.

Why should record requests be any different?

As WTom Kamenick, a lawyer at WILL, put it last week: “If defies common sense, and the law, for the Legislature to waste taxpayer resources by printing out electronic records that could cheaply and quickly be provided via email, file-sharing website or CD.”

We hope the Appeals Court in Waukesha gets this right, and that state lawmakers stop using a paper-fee dodge to blunt the spirit of Wisconsin’s open-records law.

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