Wisconsin Freedom of Information Council, Milwaukee Journal Sentinel, and Wisconsin Institute for Law & Liberty Ask Court to Clarify that Custodians Have Burden to Prove Exceptions to Release
Today, a broad coalition of three organizations filed an amicus brief in the Wisconsin Supreme Court case of Wisconsin Voters Alliance v. Secord. The organizations, the Wisconsin Freedom of Information Council, the Milwaukee Journal Sentinel, and the Wisconsin Institute for Law & Liberty, are represented by the Wisconsin Transparency Project.
The case involves access to “notices of voting eligibility,” which are court records used to indicate that a person has been adjudicated incompetent to cast a vote and should be removed from the voting rolls. The amicus organizations take no position on whether those records should be released, but instead are asking the Supreme Court to clarify confusion over whether a record requester has to prove they are entitled to access a record or the custodian has to prove an exception permits withholding the record.
The vast majority of cases have consistently stated that the custodian has to prove an exception permits withholding the record. However, a few cases have contradicted that approach, stating instead that a requesters must prove they have a “clear legal right” to a record. The amicus organizations ask the court to rule that requesters only have to prove they made a written request for a record that was denied, at which point they are entitled to the record unless the custodian meets its burden of proving an exception applies.
Bill Lueders, president, Wisconsin Freedom of Information Council – “This is an opportunity for the state Supreme Court to clarify that the open records law puts the burden of proof on the records custodian and not the requester. We hope that the court will rule in a way that affirms the law's presumption that citizens are entitled to the greatest possible access to public information.”
Luke Berg, deputy counsel, Wisconsin Institute for Law & Liberty – “No citizen should be denied tools to hold their government accountable, yet barriers to transparent government have become commonplace - affecting organizations of all political stripes, including the press. The process of obtaining public records has become far too burdensome for requestors, and the Wisconsin Supreme Court should rectify that. WILL is grateful for this coalition coming together to support true open and honest government in Wisconsin???”
Tom Kamenick, president & founder, Wisconsin Transparency – “Consistency is important. When courts take different approaches to resolving a question, litigants and courts alike face confusion and uncertainty.”