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City, Newspaper Wrangle Over Cost of Records

MADISON, Wisc. (CN) - The Wisconsin Supreme Court heard oral arguments this week to determine who should bear the cost of censoring Milwaukee police reports the media request under public records law.

The Milwaukee Journal Sentinel sued the Milwaukee Police Department and Police Chief Edward Flynn in September 2010 after they asked for more than $6,000 for records containing confidential information, which two Journal Sentinel reporters sought.

A circuit court judge sided with the city and the newspaper appealed to the state Supreme Court.

Attorney Robert Dreps of Godfrey & Kahn argued for the Journal Sentinel, saying that "the plain language" of Wis. Stat. § 19.35(3)(a) and (c) controls the case.

"The Legislature specifically listed in [the statute] the four tasks custodians are authorized to charge requesters for performing: under subsection A, they can charge the actual, necessary and direct costs of reproducing public records. Under sub B, they can charge to photograph and for photographic processing of pictures of records that can't be copied. Under sub C, they can charge for the cost of locating a record, but only if that cost exceeds $50. And under sub D, they can charge the actual, necessary and direct costs of mailing or shipping a record to a requester," Dreps said.

The Journal Sentinel says the law does not authorize charges for time spent reviewing and redacting confidential information. Dreps said that is "a task the Legislature expressly imposed on custodians in Wis. Stat. § 19.36(6)."

The newspaper said Milwaukee misinterpreted the state Supreme Court's decisions in two cases (Osborn v. Bd. of Regents of University of Wisconsin System, 2002 WI 83, 254 Wis. 2d 266, 647 N.W.2d 158 and WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736) to create a new standard for charging fees.

"Quite literally," Dreps said, "the City of Milwaukee contends that this Court rewrote the statute in Osborn and in WIREdata."

The Journal Sentinel attorney said the city turned those rulings on their heads. Dreps said the two cases actually show "deference" to the laws. In fact, he said, the ruling in Osborn "precisely mirrors" the language of Wis. Stat. § 19.35(3) in that the public body can charge only the actual, necessary and direct costs of locating, reproducing or photographic processing records. (Not to include redaction costs.)

Justice Patience Roggensack made a comparison to certain Department of Workforce Development regulations, which since 2008 have allowed charges for "computer programming."

"Our open records statute is old," Roggensack said.

Dreps said that it is not the court's role to update the statute.

Roggensack also expressed concern that large requests could be burdensome. She wondered if siding with the newspaper would be construed as an "unfunded mandate" on government agencies facing big redaction costs.

Dreps said it was the Legislature's role to change the wording - not the court's.

"The statute does not authorize just a broad fishing expedition," Dreps said. Overbroad requests may be denied.

Chief Justice Shirley Abrahamson said that, because the media consider themselves "the watchdog of government behavior," it may be discriminatory to charge media for records, as they will typically be the entity making this type of large requests. She said it could be a First Amendment issue and it important to look at the trajectory of the statute.

Milwaukee was represented by Assistant City Attorney Melanie Swank, who said the city is not asking the court to rewrite the statute. She said the law should be looked at "as a whole," and that the intent of the attorney general's 1983 revision was transparency of government and ease of access. Milwaukee claims that redaction costs fall under those related to locating and assembling records.

Swank said the newspaper's records request was "one of the broadest requests" the city ever received. She said the city had to conduct a balancing test, and could have argued that the request was an "unreasonable burden."

Journal Sentinel reporter Ben Poston requested police's computer-aided dispatch records for a two-week period during March 2010, in 14 crime categories.

Poston later amended that request to include "any incident reports related to" the dispatch records for that period.

The city identified 2,312 dispatch records and 743 incident reports responsive to Poston's request, and required prepayment of $2,081.80 for locating and copying the records.

Poston then changed his request to a CD with a summary of each computer-aided dispatch call for five specified crimes in the time period. After receiving a spreadsheet listing by number all the responsive dispatch records and incident reports, Poston requested and was provided an opportunity to inspect 100 of the incident reports he selected from the summary.

The city did not charge for staff time required to review and redact these reports. But when the newspaper requested the opportunity to specify and inspect 100 additional incident reports, the city said the newspaper would have to pay all of its "actual costs of complying with" that request.

The city said it would require prepayment of $601.80 for processing this request, since it took 15 staff hours at $40.12 per hour to prepare the first 100 reports for Poston's inspection.

The other records request at issue was from reporter Gina Barton, who asked for police computer-aided dispatch records for sexual assaults, and a subset of related incident reports "for all call types including rape, attempted rape, sexual assault and attempted sexual assault for the calendar year 2009."

The city produced a spreadsheet summary of dispatch records in response, in the same format provided to Poston, but addresses had been redacted from the summary to protect victim privacy.

Barton then narrowed her request for incident reports to include only the Incident Summary from the face page of each report. The city estimated it would cost $3,516.75 to comply with the amended request: $126.75 for copying and $3,390 to review and redact the face page of the 507 responsive incident reports.

Assistant Attorney General Carrie Benedon made an amicus appearance in support of the newspaper. The League of Wisconsin Municipalities filed an amicus brief supporting Milwaukee, but did not participate in oral arguments.

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