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Resolving Public Records Disputes in Wisconsin: the Role of the Attorney General's Office Jonathan Anderson University of Wisconsin-Milwaukee

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Resolving Public Records Disputes in Wisconsin: the Role of the Attorney General's Office Jonathan Anderson University of Wisconsin-Milwaukee University of Wisconsin Milwaukee UWM Digital Commons Theses and Dissertations December 2013 Resolving Public Records Disputes in Wisconsin: the Role of the Attorney General's Office Jonathan Anderson University of Wisconsin-Milwaukee Follow this and additional works at: https://dc.uwm.edu/etd Part of the Dispute Resolution and Arbitration Commons, and the Journalism Studies Commons Recommended Citation Anderson, Jonathan, "Resolving Public Records Disputes in Wisconsin: the Role of the Attorney General's Office" (2013). Theses and Dissertations. 656. https://dc.uwm.edu/etd/656 This Thesis is brought to you for free and open access by UWM Digital Commons. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of UWM Digital Commons. For more information, please contact [email protected]. RESOLVING PUBLIC RECORDS DISPUTES IN WISCONSIN: THE ROLE OF THE ATTORNEY GENERAL’S OFFICE by Jonathan Anderson A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of Master of Arts in Media Studies at The University of Wisconsin-Milwaukee December 2013 ABSTRACT RESOLVING PUBLIC RECORDS DISPUTES IN WISCONSIN: THE ROLE OF THE ATTORNEY GENERAL’S OFFICE by Jonathan Anderson The University of Wisconsin-Milwaukee, 2013 Under the Supervision of Professor David Pritchard This study investigates how the Wisconsin attorney general reviews and sometimes intervenes in access disputes over the state’s public records law. The study posed three primary questions: How do the attorney general’s administrative review mechanisms operate in practice? To what extent are the mechanisms effective at resolving disclosure disputes? And do the mechanisms help people unable to hire a lawyer to litigate? The study analyzed correspondence in 304 cases over six years to generate data on the quantity and nature of the attorney general’s caseload in that time period. The study also interviewed 17 requesters to understand their disputes, their perceptions of the attorney general, and the outcomes of their cases. In short, the study revealed a wide range of data about who uses the attorney general’s mechanisms, the authorities involved in disputes, the main issues underlying disputes, and the types of action the attorney general’s office took in disputes. The study also found that the attorney general’s administrative review mechanisms have the capacity to help resolve disclosure disputes, though in some cases requesters reported that the attorney general was not helpful. The study further found that when the attorney general’s office intervenes, it often works with parties to informally resolve disputes and almost never takes formal legal action to enforce the public records law. ii © 2013 Jonathan Anderson All rights reserved. iii TABLE OF CONTENTS CHAPTER 1: INTRODUCTION .................................................................................................. 1 CHAPTER 2: BACKGROUND .................................................................................................... 7 I. Public access to government information: theory, history, and democracy ...................... 7 A. Global roots of freedom of information ................................................................. 9 B. Freedom of information in the United States ....................................................... 11 II. Wisconsin’s public records law ....................................................................................... 19 A. Senate bill 250 and the open records board ......................................................... 22 B. Subsequent amendments to the public records law ............................................. 24 C. Basic elements of the public records law ............................................................. 26 D. Enforcement provisions ....................................................................................... 30 E. Administrative review mechanisms ..................................................................... 32 III. Administrative review mechanisms in the United States ................................................ 47 A. Types of administrative review mechanisms ....................................................... 50 IV. Standards for assessing the effectiveness of administrative review mechanisms at resolving disclosure disputes ................................................................... 57 A. Factors evaluated by mechanism design .............................................................. 58 B. Factors evaluated by assessment of mechanism operation in practice ............................................................................................. 60 C. Factors evaluated by a hybrid approach ............................................................... 62 V. Research questions .......................................................................................................... 72 CHAPTER 3: RESEARCH METHODS ..................................................................................... 73 I. Analysis of requests to and responses from the attorney general .................................... 73 II. Semi-structured interviews with mechanism users .......................................................... 76 CHAPTER 4: FINDINGS ........................................................................................................... 78 I. Summary of major findings ............................................................................................. 78 II. Analysis of correspondence ............................................................................................. 80 A. Quantity of cases, requests, and requesters .......................................................... 80 B. Types of requests ................................................................................................. 81 C. Issues presented in cases ...................................................................................... 83 D. Types of requesters .............................................................................................. 85 E. Single-case requesters vs. multiple-case requesters ............................................. 86 F. Few requesters were lawyers ............................................................................... 88 G. Requester county .................................................................................................. 90 H. Authorities: state vs. local .................................................................................... 91 I. Authority types ..................................................................................................... 92 J. Authority county for local authorities .................................................................. 94 K. Attorney general responses were fairly timely .................................................... 97 L. Cases in which authority was involved in before AG response ........................... 98 M. Cases attorney general copied authority in response letter .................................. 99 N. Attorney general response author ...................................................................... 100 iv O. Summary of correspondence analysis ................................................................ 101 III. Interviews ....................................................................................................................... 103 A. Table of interviewees ......................................................................................... 104 B. Attorney general intervention can help resolve disputes ................................... 104 C. Requesters also reported instances when attorney general review did not resolve disputes. ............................................................ 111 D. Requesters reported seeking attorney general help even when they did not expect any action ......................................................... 113 E. Requesters often cited low cost of using attorney general ................................. 116 F. Litigation as last resort ....................................................................................... 118 G. Requesters generally articulated respect for attorney general’s office .................................................................................... 119 H. Numerous requesters complained about lack of definitiveness of AG’s responses .................................................................. 122 I. Requesters reported that the AG often takes informal action to resolve disputes .................................................................... 124 J. Summary of interview findings ......................................................................... 127 CHAPTER 5: DISCUSSION ..................................................................................................... 128 I. Application of assessment standards ............................................................................. 128 II. Findings are consistent with legislative intent ............................................................... 135 III. The attorney general’s office overwhelmingly uses informal means to resolve public records disputes over formal legal action ........................................... 136 IV. Complaints about the attorney general’s lack of definitiveness are understandable and warranted, but there is also a compelling counter argument ................................... 137 CHAPTER 6: CONCLUSION
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