Jefferson Banner - Opinion
John Foust - JDC
Jefferson Banner - Opinion |
October 4, 1999 David Olsen Dear Mr. Olsen, I visited your office on October 4 but you were not there. On September 15 I visited your office to seek a response to my previous open records requests. You gave me a preliminary draft of your letter dated September 10, enclosed, in response to my Commerce and Industry Association (CIA) open records request of August 26, which explained that some records will be released and that some will not. You supplied some but not all of the items I requested. I am still waiting for the final version of this letter. In particular, the draft letter claims that the Executive Director's performance evaluations that were presented in open session in January 1998 and February 1999 can be withheld retroactively. It also claims that because the Chamber of Commerce pays the telephone bill, that no long-distance records exist for the CIA. The draft said nothing about my request for time records describing the duties of the Executive Director. It claims there are no records of vacation or work time. The statement regarding assets is ambiguous. Exactly which items are half-owned by the CIA, and who owns the other half? On September 15, when I asked about what I thought were unnecessary delays in your response to my requests, you claimed that you thought my previous requests said I wanted to receive your responses in sequential order, and that you were still working on my August 26 request and had not yet begun to work on my subsequent requests. My requests had no such requirement. My August 26 letter said "I'd like to receive copies or inspect these records as soon as practicable and without delay, as soon as each are available." For example, on September 8 I requested copies of the Jefferson Development Corporation (JDC) minutes and agendas. On September 15 you said those records are easily accessible on your computer and that it would only take a minute to copy the files to a floppy as I'd requested, but that because you hadn't finished the response to my August 26 request, you hadn't moved on to the September 8 request. I have not yet received these records. Your letter of September 21 claimed you needed to confer with the JDC's attorney before you released them. Your letter of September 27, in response to my JDC open records request of September 8, suggests that we need to schedule a meeting to discuss exactly which JDC records I desire. My letter was very specific. I expected the agendas, minutes and financial reports of the JDC Board meetings from March 1, 1994 until the present. I am sure that the JDC in its future meetings will use closed sessions to protect any information regarding any truly current and active prospect in negotiation. To that end, I propose that any information in these records regarding a prospect that is not actively involved in sensitive negotiation should be available to me. I believe this meets the intent of Wis. Stat. § 19.85(1)(e) and § 19.35(1)(a), balancing the public interest against sensitive negotiations. Certainly there must be a point in time when the information is no longer sensitive. For example, the pre-1994 JDC records have been publically accessible for quite some time, and no one has ever mentioned the damage this caused. Of course, without access to the more recent JDC minutes, it is difficult for me to assess whether they contain any sensitive information at all. If you would like to hold a meeting to discuss this, schedule it as part of a regular JDC meeting, and please invite the District Attorney to aid in the discussion. Your September 27 letter also claims that because League of Municipalities attorney Curt Witynski stated that the CIA can pick and choose which records it would release, that therefore some of my requests will be denied. I contacted Attorney Witynski on my own. I enclose a response from him that explains he gave his personal opinion but that it had no basis in the Wisconsin statutes nor in any opinion of the Attorney General's office. I urge the CIA to reconsider this decision to withhold records and place it on a stronger legal footing than an unsubstantiated opinion based on unknown information presented in an informal phone call. Perhaps it makes more sense to consult with someone with more familiarity with the facts of the CIA's situation, such as the City Attorney or the District Attorney. As I see it, the CIA only confirmed that it was subject to open meetings and open records law at its August 3 meeting. This was done without a vote, implying that no new decision was being made. You quickly and illegally destroyed the audio recording of this meeting. The minutes do not adequately describe how this conclusion was reached. The minutes do not state that the CIA believed it was private before the August 3 meeting, and you offer no evidence to support this claim. I urge the CIA to clarify this situation, and to release these records as soon as possible. Your letter of September 27 also claims that you will supply records in electronic format, but it included only a paper copy of the minutes of the August 17 meeting of the JDC. No floppy disk was included. I would prefer to receive this in electronic format. If you have any questions, please call me at 674-5200. Sincerely, John J. Foust cc: District Attorney David Wambach, City Administrator David Schornack |