Wisconsin court decision prompts question: Does motive of requester matter in FOI requests?

In a ruling earlier this month, the Wisconsin Court of Appeals set a precedent of allowing state officials to consider the purpose of a citizens’ public records request before handing over documents.

Background

Korry Ardell filed an open records request with the Milwaukee School Board for a specific employee’s record of sick days, notes or disciplinary actions and investigations of the employee. The school board denied the request because of Ardell’s past with the employee — he was accused of abusing the employee, and the employee had a restraining order against him in the past. The school board concluded that “the public interest in protecting the safety and welfare of the employee clearly outweighs the public interest in disclosure in this instance.”

The trial judge agreed with the school board, and Ardell appealed.

A Public Records Balancing Test?

According the the appeal, “Ardell has not aligned himself with the general class of persons (emphasis added)” that make records requests to ensure government transparency.

Rather, Ardell’s violent history with the … employee, including his two convictions for violations of the domestic abuse injunction, align him more closely with the class of persons statutorily denied access to public records for safety reasons, that is, committed and incarcerated persons.

Ardell told The Associated Press that he wanted the records to show the employee wasn’t credible and that she was abusing sick leave and employee benefits.

Problems with considering FOI motivation

As an editorial from The Fond du Lac Reporter notes, denying Ardell’s request given his past certainly sounds reasonable. But now government officials have yet another obstacle they can use to impede access to public records. Anyone who’s ever dealt with a freedom of information request, even once, will tell you that the process is a complete “hassle” — but with much more colorful language.

Currently, public officials will deny FOI requests without cause, estimate exorbitant costs (which basically become an analog to an outright denial), fail to respond, use vague exemptions, gray areas or misinterpret the law. Do we really want to give the government another reason they can use?

They use the law to their advantage to “shut the public out.” And to reiterate The Fond du Lac Reporter, “This is a loophole that needs to be closed as quickly as possible — by the courts or by the Legislature.”

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

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