A lawsuit filed this week over the length of time it takes one state agency to respond to open records requests has open-government advocates hoping a court will make clear how long is too long for the state to respond to such requests.
Madison-based Midwest Environmental Advocates, a public interest law firm, filed a complaint this week in Dane County Circuit Court against the Department of Natural Resources alleging the state agency is violating the state’s Public Records Law by taking months — 10 months in one case — to respond to three requests for information related to a group of wetlands permits, concentrated animal feeding operations and air testing data.
The group’s suit comes amid criticism of the way Gov. Scott Walker’s administration handles requests for public records and in the wake of an unsuccessful July attempt by lawmakers to shield most records produced by the Legislature from public scrutiny.
“We’ve experienced too many instances where records requests have been unreasonably delayed,” the environmental group’s staff attorney, Tressie Kamp, said in a statement. “Now we and many of our partners in communities across Wisconsin feel that the trust that is inherent in the open records laws is misplaced. Without this trust, the law does not function as intended and citizens lose access to a transparent, responsive government. It was time to ask the courts for help.”
DNR spokesman George Althoff said, “DNR takes its responsibility to the state open records law very seriously.” He said the DNR does not comment on pending litigation.
Wisconsin Freedom of Information Council president Bill Lueders said he’s “glad to see a legal challenge over long delays in providing records.”
He said delayed responses to requests have been “an issue of growing concern” over the last several years — not just at the DNR, but at other state agencies, including the Department of Administration, Department of Corrections and University of Wisconsin System.
Lueders said the delays aren’t just a function of Walker’s administration, but rather a “gradual confluence of forces” is to blame, including state agencies being “strapped for staff.”
“And this is one of the areas they haven’t fully staffed,” said Lueders.
He said despite complaints over long waits, former Attorney General J.B. Van Hollen and current Attorney General Brad Schimel haven’t weighed in on whether a specific deadline for responding to requests should be outlined in the state open records law.
“The fact that two (attorneys general) have not wanted to draw bright lines there has kind of emboldened custodians to take even longer,” said Lueders.
The open records law does not set a time frame within which a government agency must respond to a request but says agencies should respond “as soon as practicable and without delay.”
Some other states define a response time in state law. In Illinois, for example, records custodians have five business days to “either comply with or deny a request.” If custodians need more than five business days, the law allows them to take another five days.
“The office of the Attorney General has been reluctant to make these judgments, so I hope this is an area in which the courts can provide guidance,” said Lueders.
A spokeswoman for Schimel did not respond to a request for an interview.
The environmental group filed three requests for DNR records on March 9, June 3 and Aug. 19, the complaint states.
The DNR acknowledged receiving the March 9 request for air testing data on April 24 and sent the group an invoice for $162.50. The group sent the money to the DNR on June 29 but did not receive a response or records, according to the complaint. After months of calls and emails, according to the complaint, a DNR official responded on Jan. 12 saying the payment was received after the invoice’s payment deadline, prompting the request to be canceled.
The DNR took nearly five months to acknowledge the group’s June 3 request for information about concentrated animal feeding operations. In that email, a DNR official noted ongoing litigation, according to the complaint. The DNR said the advocacy group might want to resubmit a request. No further communication or records have been received from the DNR, the complaint states.
The last request, submitted on Aug. 19, was acknowledged on Nov. 10, when the agency asked the group to narrow the scope of its request. The group responded to the DNR’s emails on Nov. 18 and says the DNR has not provided further communication or records.
In addition to the failed attempt by lawmakers to gut the state’s records law, earlier this month the state Public Records Board rescinded a controversial decision that allowed public officials to quickly destroy certain records that they deemed to lack lasting significance.
The board’s decision drew little notice when it was made in August. But it came under scrutiny last month after Walker’s administration cited it to explain why it had no records on file in response to requests from the Wisconsin State Journal and liberal group One Wisconsin Now.