Dozens of open records requests to Wisconsin DOJ have sat for more than a year

by Henry Redman, Wisconsin Examiner
March 5, 2023

The Wisconsin Department of Justice (DOJ) has more than three dozen pending open records requests that have remained unfulfilled for more than a year, according to the agency’s public list of open requests. 

The backlog of requests has caused wait times to grow for newer requests. It also has open government advocates worried about the consequences for transparency when the agency responsible for interpreting and enforcing Wisconsin’s public records and open meetings laws is itself struggling to keep up. 

The department’s Office of Open Government, which is responsible for responding to open records requests and answering public inquiries about the interpretation of open government laws, reported that in 2022 the agency received a record-high 924 public records requests — beating the previous record by 100. 

The Wisconsin Public Records Law Compliance Guide states that 10 working days is a “reasonable time” for responding to a simple request. State law only requires requests to be fulfilled “as soon as practicable and without delay.” The 2022 annual report shows that DOJ responded to 46% of records requests within that 10-day guideline. The median response time, the report found, was 18 calendar days. 

A snapshot of the agency’s pending records requests as of Feb. 27, obtained by the Examiner, shows 171 requests older than 10 business days. The agency’s January response time report showed that 13 of the 65 requests the agency fulfilled during January took longer than a month, and the average response time was nearly 24 days. One request the agency finally fulfilled in January had been pending for 299 days. 

“We’ve got a number of excuses that are trotted out — too many requests, we don’t have enough staff,” says Bill Lueders, president of the Wisconsin Freedom of Information Council. “I’m largely unsympathetic to that argument. The open records law says that performing the function of giving people records is the primary responsibility of the state of Wisconsin. The public agencies need to take that seriously. If they’re understaffed they need to be fully staffed. You can’t just say, ‘We get too many requests,’ you have to meet your responsibility under the law to have adequate staff for this vital function.”

The Feb. 27 snapshot shows 41 requests have been pending for more than a year. The agency’s longest pending request, filed in late August of 2020, seeking copies of department communications regarding militia activity in Kenosha, has sat unfulfilled for 912 days. 

The backlog has delayed public access to department information and hampered the ability to learn about the functions of one of the state’s most powerful agencies. 

“Due to the high volume of public records requests received by DOJ, we are unable to provide an estimate on when we anticipate having a response to your request ready,” the department recently told the Examiner about a request that’s been pending since November. “Please rest assured that our office is working to process your request. Wisconsin Statutes mandate that we provide you with a response ‘as soon as practicable and without delay.’ Please be assured that DOJ is committed to providing a thorough and timely response to your request. We appreciate your patience as we continue to process your request.”

The department says that a combination of an unprecedented level of requests and the complexity of some of them has created the backlog.

“The Wisconsin Department of Justice (DOJ) is committed to transparent and open government,” agency spokesperson Gillian Drummond said in an email. “Last year, Wisconsin DOJ responded to over 900 public records requests — a record high and more than double the number of requests responded to in 2014. The response to records requests to Wisconsin DOJ is frequently complex. There are many attorneys and investigators at Wisconsin DOJ, and responses can require review to ensure that highly sensitive information — such as attorney-client privileged information, information regarding ongoing investigations, and information about crime victims — isn’t compromised.”

Among the members of the public listed on the Feb. 27 snapshot are news reporters from outlets based across the state, former candidates for office and representatives of the state’s political parties. 

The snapshot shows that on May 21, 2021, former Republican Party of Wisconsin spokesperson Alesha Guenther filed three requests for copies of department calendars and agency communications. None of those requests have been fulfilled. 

“Josh Kaul should be the state’s top enforcer of Wisconsin Public Records law, but continues to shield public records from view so he can run his office in secret,” Rachel Reisner, the party’s current spokesperson, said in a statement. “Democrats in state government should join Republicans in demanding accountability.”

Drummond, however, said that the DOJ under Kaul does not categorically deny requests as being “overly burdensome,” a move that she says was common under the previous Republican administration. If those large requests aren’t being denied, they can add to the length of time they take to fulfill.

“In the previous administration, Wisconsin DOJ refused to fill requests that the administration regarded as too burdensome,” Drummond said. “We no longer categorically deny requests as too burdensome, and we try to work with requesters to target their request to the records they are looking to receive. Wisconsin DOJ does this while not charging for the searching for and retrieval of any records. In addition, DOJ has also authorized overtime for public records responses related to Wisconsin DOJ investigations.”

But some open government advocates believe the problem is caused by resource allocation decisions. They argue that if the current staff of the Office of Open Government can’t keep up with the pace of requests, they need to be provided with more help. 

“DOJ is a huge agency with significant resources. If their record backlog is growing, they need to adjust their priorities and catch up,” says Tom Kamenick, an attorney who frequently fights for access to public records on behalf of news outlets (including the Examiner) and advocacy groups. “Because the Attorney General is statutorily charged with both interpreting and enforcing the Open Records Law, the Department of Justice should be the leading example of how to fulfill record requests in a timely manner.”

Jonathan Anderson, a Ph.D. student in Minnesota and former Wisconsin journalist who wrote his UW-Milwaukee master’s thesis on DOJ open government issues, sees a complicated picture in which some requests are responded to promptly while others sit for months. 

“There are these requests that are taking a very long time and yet, it’s still complicated that their 2022 annual report does show they have been able to respond to at least half of requests within 10 days,” he says. “It illustrates an enduring problem that government agencies have, which is they need the resources to be able to respond to public records requests. It really is an essential function of their operations and it’s not always clear that the resources agencies are allocated to public records requests are sufficient.”

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