First complete legal analysis of Act 253 provides guidance for requesters and custodians
Attorney Tom Kamenick, President and Founder of the Wisconsin Transparency Project, has authored the first publicly-available, detailed analysis of 2023 Wisconsin Act 253, the new law permitting law enforcement agencies to charge for the redaction of video and audio recordings. Unlike a previous partial analysis from the Wisconsin Chiefs of Police Association, this paper analyzes each section of the new law, always keeping in mind the Open Records Law’s command that all its provisions be interpreted liberally in favor of transparency, with a presumption of complete public access to government records.
The paper in PDF form can be downloaded below.
Key takeaways:
Because the new law operates to restrict access to public records, it must be construed narrowly, with any ambiguities being resolved in favor of greater access
Law enforcement agencies may charge only for the time actually spent performing redactions, not time spent reviewing audio and video records to see what, if anything, needs to be redacted
Both institutional and individual requesters may qualify for an exemption if they have requested fewer than 10 audio/video recordings from the same agency, although individuals also have to certify they will not use the recordings for financial gain
“Financial gain” is an undefined and ambiguous term, and requesters must be very careful to avoid facing a $10,000 fine
The $10,000 fine is outrageous, as it is not “up to” $10,000 and it can be assessed even for an honest mistake. By contrast, government officials who violate the open records law face only up to $1,000 in fines, and only then if they arbitrarily or capriciously violate the law.
The paper builds on work WTP did for Tone Madison, an independent news organization, challenging fees being charged by the UW-Madison Police Department. Tone Madison has reported at length on its travails, including a new piece sharing WTP’s legal analysis.
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