Let the sunshine in

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By Emily Kelchen | for Raise the Bar

Those of us in the Northern Hemisphere are happily soaking up the extra minutes of daylight we gain as we head into springtime, but a few people are taking things further by celebrating Sunshine Week. The pseudo-holiday is a nonpartisan collaboration among groups in the journalism, civic, education, government and private sectors that highlights the importance of public records and open government. Raise the Bar chatted with Tom Kamenick, the president & founder of the Wisconsin Transparency Project, to shed some light on this area of the law. - Emily Kelchen

Your firm is exclusively dedicated to enforcing open records and open meetings laws, which is a very niche practice area. What sparked your interest in this area of the law?
I believe that for a democracy to work, the government must be accountable to the people. And accountability requires transparency. Our state and federal laws are drafted to ensure the public has access to government records in theory, but violations of both records and meetings laws are woefully underenforced. I started WTP to try and fill that gap. 

What advice do you have for lawyers who don’t specialize in sunshine law but encounter open records issues?
The burden is on the government to justify secrecy. You don’t have to explain why you are entitled to a record, it’s their job to come up with a legally justifiable exemption. So if you don’t know whether a particular record can be released, just ask and make them defend a denial.

What are the most common types of cases you handle under sunshine laws?
I do far more open records cases than meetings cases. Record cases seek a tangible benefit—pieces of paper or electronic files in your hands. Meetings cases are almost purely about the principle of the issue so it’s harder to find people willing to take a stand, especially when we’re talking about local government. People know that petty officials can make their lives miserable if they want to, so they’re often afraid to speak out.

What are some of the biggest misconceptions about open records and open meetings laws?
A lot of people think closed sessions are mandatory and officials can’t talk about what happened in them. That’s just not true. A closed session is always optional, and the information discussed in closed session is not privileged and is not inherently confidential.

Have you encountered government agencies using creative methods to avoid transparency?
Electronic records being both easily storable and searchable has made it much easier for the government to respond to record requests. But I constantly run into places trying to charge 10, 15, or even 25 cents a page for paper copies just because that’s what they’ve always charged. This is despite Wisconsin Attorney General guidance from 7 years ago that custodians have to use their actual paper & copier supply prices to calculate a copy fee (which should be in the 2-4 cent range).

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Raise the Bar is curated and written by Emily Kelchen and edited by Bianca Prieto.