Archive for July, 2013

Good Faith Ignorance of Clerk’s Duties is No Excuse – And Can Be Costly for Municipality re Public Records Requests

Monday, July 22nd, 2013

I’ll put the bottom line at the top – if your municipality gets a request for documents or other records, you must take action.  And if you have any reason whatever to think you will delay or deny the request, contact an attorney familiar with the public records law.

The facts of this case, James L. Webster v. Township of Spruce,  are not really in dispute, or particularly important to the holding.  An attorney named James Webster asked a local clerk for some documents related to a park, which he felt was being mismanaged.  The Clerk arranged for Webster to see some of the documents, and Webster asked for more.  In the end, the Clerk, apparently inadvertently, denied some of Webster’s requests, and told Webster to direct all further communication to the Town attorney.  Webster sued, and the circuit court, apparently sympathetic to a part-time clerk who did not know the rules for records requests, essentially said that Webster had now essentially gotten what he was after and the court did not rule against the Town.

The appeals court overturned the circuit court in no uncertain terms.  To begin with, clerks are required to respond to public records requests without delay, either by providing the requested documents, or by denying the request and giving reasons for the denial.  The court noted that there is no third option of “compliance at some unspecified time in the future…”  In addition, although the clerk had sought the advice of an attorney, the court stated that there was no exception in the public records law for failure to respond to a record request based on “the ill-advice of counsel.”

The appeals court noted that clerks have statutory duties, and ignorance of those duties is not an option.  “Excusing nondisclosure by failing to award costs, damages, and fees in the present case would be rewarding the Town for [the clerk’s] failure to know and perform her statutory duties.

The appeals court also ordered the Town to pay Webster’s attorneys fees, as required by statutes.

In my opinion, the circuit court was right that part time clerks in small towns usually won’t know all the nuances of the public records law, but the appeals court was right to not allow that as an excuse.  If your town is faced with a records request and you are unsure what to do, consult an attorney familiar with the public records law “a.s.a.p.”

Release of Customer Information from Public Utilities Now Prohibited

Monday, July 8th, 2013

On Friday July 5, 2013, Governor Walker signed 2013 Act 25, creating a new exception to the public records law.  Act 25  prohibits the release of customer information (which is specifically defined in the alw) by a municipal utility unless the customer consents to the release of the information, or if another exception applies.

Walking Quorums – Milwaukee County Board Members Accused of Violating Open Meetings Law

Wednesday, July 3rd, 2013

A recent Milwaukee Journal-Sentinel article provides an important reminder that a violation of the Wisconsin Open Meetings law can occur if government business is discussed between board members even if a quorum is not present.  This can occur if individual members discuss the same subject with one another and come to an agreement regarding how to proceed prior to an official, properly noticed  meeting of the full body.  This is often referred to as a “walking quorum”.  In this case, a number of Milwaukee County Board members are accused of meeting one on one with each other until the “one on one” meetings between enough members resulted in a majority of the board arriving at a tacit decision regarding terminating the employment of a county employee.  From a practical perspective, this can occur when one board member calls a member to discuss an issue, and that member calls a member to discuss the same issue and so on until enough such calls have been placed that a majority has arrived at a conclusion before the public even knows that there is an issue under consideration.  This can also occur by email and by in person meetings.  Such violations can result in prosecution.  If you are discussing governmental business with other members of the governing body outside of a noticed meeting, caution should be taken to make sure you do not engage in a walking quorum.