Thursday, December 8th, 2016

A comment on Open Records

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Mark Pitsch wrote an op-ed that appeared in Friday’s Waukesha Freeman, and I strongly suggest reading the whole thing. No, the column isn’t friendly to Republicans, but that’s not what this website or the work that I do elsewhere is about either. I think the lumps he delivers are well-placed.

There’s one point in his column worth repeating here and commenting on as it relates to local politics.

Across the state, local government agencies are asking public records requesters to pay excessive fees to obtain public records. State law allows government bodies to charge requesters the “actual, necessary and direct” cost of copying records, and the cost of locating records when these exceed $50. But increasingly, agencies are asking requesters to pay for reviewing and redacting records.
According to attorney Bob Dreps, an expert in this area of the law, these new fees can run into the tens of thousands of dollars, and even at lower amounts discourage requesters. This trend makes it nearly impossible for average citizens to obtain a substantial body of records, and very difficult for the media acting as the public’s representatives.

I’m currently involved in two open records cases that may be of interest to my readers.

The one involves Waukesha Alderman Roger Patton. I sent him an open records request in February asking him for all of emails concerning GuitarTown. I didn’t hear from Patton for a week. I finally called him to follow up as I was leaving town. Patton told me that he deleted every email he received regarding city business, including anything pertaining to GuitarTown. He did eventually locate two emails, but we know that there were a lot more. I would sue but since the records are gone, what would I gain? So I referred the matter to District Attorney Brad Schimel. Schimel has assigned an investigator to the matter and has asked me for more information which I have provided. Among the things I have provided Schimel is emails from other sources indicating that there are emails that Patton did not send me in response to my request.

I believe Schimel takes the issue seriously and it will be interesting to see how it’s resolved. Does Patton resign? Does he resign and pay a fine? Because whatever the resolution, it does have to set the example in Waukesha County that it does not pay to destroy public records.

The other case involves Norm Bruce, the owner of Martha Merrill’s Bookstore and the president of the Business Improvement District (BID) in downtown Waukesha. On February 16th I sent him an open records request asking for any emails concerning GuitarTown. BID Executive Director Meghan Sprager told me she would offer to help Bruce and others answer the open records request. Bruce did not answer right away, but he eventually told me he was having computer issues but that I could expect the request to be fulfilled shortly. Finally on February 27th, I received the following email from Bruce.

I have your records for you. Unfortunately, I was having computer problems so I printed copies of the e-mails. I have 155 pages printed. The cost for printing was $38.75 payable to the BID.

Thanks for your patience with my older technology. I will be at the reception tonight from 3:30 or so set up until finished, Please inform me when I can expect your pick-up.

Norm

I was less than thrilled, to put it mildly. As Pitsch’s column points out, even minor charges can deter open records requests. That’s especially true for independent writers like myself, and so I have retained attorney Mike Maistelman for these matters.

I responded to Bruce:

Given that I requested the records in electronic form (their original form) in order to avoid costs, and given the level of public interest and importance, I respect that either the BID waive the fees for reproduction or else the records are sent to me electronically, individually if necessary. My last conversation with you was that you were attempting to put them on a CD. I understand that caused some difficulty. However, Lynn Gaffey and Kerry Mackay were able to complete the requests by sending each email to me individually. I also spoke with Meghan Sprager who suggested you scan the print outs and send them to me that way.

As you can see, I’m being really reasonable. This was the reply I received.

In your original request, you stated, “given the issue of cost, I would prefer the response to be in electronic form. As the records I have requested are already in electronic form and in your possession, you should be able to provide them in an electronic format. Please advise me before processing this request if the total cost will exceed $25.” As stated before my computer gave me problems fulfilling your request and as a result, I am providing paper copies of those e-mails. In an effort of compromise, with you, the records are at Martha Merrell’s and the charge will be $25 instead of the actual cost of $38.75. Please bring payment of that amount payable to Waukesha BID when picking up the records.

Now let’s bear in mind that the $25 refers to costs incurred from reproducing the records electronically. Also, Sprager at the BID told me she has no idea why I should write a check to the BID. I responded accordingly.

Really Norm? You’re in the retail business. {Martha Merrill’s bookstore} I don’t believe this is the level of customer service you have provided my wife with her book purchases for the children these last few years, nor the many people she has referred to your store.

It’s not my fault you had computer problems, and BID Executive Director Meghan Sprager has said on more than one occasion that she was offering to assist you. In my last conversation with her, she said she would offer to scan the print outs and send them to me. As it is, you’re the last to provide me with the completed open records request (aside from Roger Patton, whom I have referred to the District Attorney) and the only one who is attempting to charge me. I even have the mayor’s response on disk in my possession.

Let me walk you back a couple of steps here. I’m not sure who is advising you on how to answer an open records request, but $.25 per page is a maximum, not a set price. Reasonable cost is the standard. A ream of ink jet paper at Office Max costs $8.79. That’s 500 sheets of paper. You’ve informed me that the print out of the open records request is 155 pages. That means you’ve used $2.73 worth of the BID’s paper. I’m sure the BID would be willing to waive the $2.73 for the reasons I’ve given below.

I’ll admit I was (am) irritated, but even I couldn’t believe the response that followed.

I am permitted to charge a fee that cannot exceed the “actual, necessary and direct cost of reproduction.” Such costs include more than merely the cost of paper. The work required by myself to put the information together for you was 6 hours. Sixteen cents per page is much less than the amount I actually incurred complying with your request. The information is ready for your pick-up.

Bruce, a public official, is actually trying to charge me for his time. On February 29th, I sent him a message from my Blackberry, “Norm, as a public official, you cannot charge for your time.” I followed up again on March 2nd.

Norm, following up on this again, your time is not chargeable. Also, I spoke with Meghan Sprager, the executive director of the BID, and she has no idea why you think I should write a check to the BID. I’d also like to remind you that she has offered to scan your print outs to send them to me. I have been more than willing to compromise by accepting the printed copies rather than the electronic versions as I requested, but I will not set the precedent of allowing you to charge me, especially when the request is now 14 days overdue.

I consider this to be merely a delaying tactic on your part, one that will no longer be tolerated. I am meeting with my attorney on Monday to determine how we will proceed regarding those officials that have refused to cooperate with my open records request.

Just a reminder that you would be responsible for all legal fees should I prevail in court, a sum much larger than the amount you are wrongfully attempting to charge me in an effort to delay the release of these import public records. Also, I would refer you to both City Attorney Curt Meitz and Waukesha County District Attorney Brad Schimel to ask them about the importance of answering open records requests in a responsible and timely manner.

Bruce responded,

James,

I have the records here waiting for your pick-up per your request. They have been available since Monday, Feb. 27th for your pick-up and the following e-mails this last week have made that clear.

Respectfully,

Norm

I responded,

Your emails made it clear you were attempting to collect a fee for the open records request.
That is not making them available. If they are available without charge I can pick them up from the bookstore during tomorrow’s (Saturday) art crawl.

Hi James,
In your original request, you stated, “given the issue of cost, I would prefer the response to be in electronic form. As the records I have requested are already in electronic form and in your possession, you should be able to provide them in an electronic format. Please advise me before processing this request if the total cost will exceed $25.” As stated before my computer gave me problems fulfilling your request and as a result, I am providing paper copies of those e-mails. In an effort of compromise, with you, the records are at Martha Merrell’s and the charge will be $25 instead of the actual cost of $38.75. Please bring payment of that amount payable to Waukesha BID when picking up the records.
Thank You
Norm Bruce

I’m going to make one more attempt this week to get those records. After that, Bruce will be dealing with Mike Maistelman and possibly the BID will have to answer to the district attorney. It’s frustrating that it’s reached this point but unfortunately this is the way Bruce wants to behave. It reflects poorly on him, the other BID board members, the GuitarTown project, and on Martha Merrill’s Bookstore. I fully expect the matter to be resolved swiftly or else the BID Board should seriously consider whether Bruce is the appropriate person for such a position of leadership in the community.

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