The Green Bay Press-Gazette reported last week that the Green Bay Mayor’s office refused to release the spending requests that city department heads presented to Mayor Jim Schmitt as part of his 2018 budget preparation. The Press-Gazette reported that Assistant City Attorney Joanne Bungert denied an open records request for the documents, saying they are drafts and therefore exempt from the state’s open records law. Bungert said the denial was based on guidance she received from the Wisconsin Department of Justice. Drafts are indeed exempt. But whether Bungert’s denial of the PG’s request squares with the law appears to be an open question.
DOJ spokesman Johnny Koremenos explained in an email to Media Trackers the guidance the city of Green Bay received:
DOJ’s Office of Open Government, which is led by Assistant Attorney General Paul Ferguson, has a Public Records/ Open Meetings (PROM) help line.
DOJ received an inquiry from Green Bay, which was treated as a PROM. (PROMs are calls to our PROM line or short emails seeking advice or information that we treat as PROM calls.) Typically, PROMs are responded to via phone, which is what AAG Ferguson did in this case. As he recalls, they discussed drafts.
The facts available to AAG Ferguson on PROM calls are limited. As a result, he tries not to offer an opinion because he doesn’t have all the facts (or he says that advice is based on the limited facts available).
This is the guidance given by DOJ on drafts: If the drafts were created at the request of a supervisor for his or her personal use and not used for their intended purpose, then they may not be subject to disclosure.
Koremenos didn’t specify whether Ferguson understood exactly what documents Bungert and he were discussing. Thomas Kamenick, open government specialist with the Wisconsin Institute for Law and Liberty, disagrees with Green Bay’s decision:
I think the mayor is misusing the “draft” exception to the open records law. Under 19.32(2), record does not include “drafts, notes, preliminary computations and like materials prepared for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is working.” This is often referred to as the “personal use” exception – to emphasize that not all drafts and notes are exempt from the law, what is really important is how they are used.
Typically, the exception is used for personal notes or drafts that only one person creates, sees, and uses. So if an employee attends a meeting, jots down some notes, types up a draft memo based on those notes, then comes back to the work a couple days later to write a final memo, neither the notes nor the draft memo would be a “record” (but the final memo would be).
Where it gets a little trickier is the “in the name of a person for whom the originator is working” exception. There’s not good case law directly on point, but there’s a strong Attorney General opinion that says that many different people within a department can work on something for the department head, and all that work would be exempted from disclosure. But when that draft or memo gets circulated outside of the department, it is no longer prepared for “personal use” or for the use of a direct supervisor.
Kamenick says because of that, he is of the opinion that when a department sends a budget request to the mayor, or to another department, even if the budget request is not in final form, that document is subject to the open records law. Kamenick says a counter argument would be that all the draft requests are being prepared for the mayor’s personal use in creating an executive budget proposal, but he told Media Trackers Monday that “I don’t think that flies because the departments aren’t writing their requests for the mayor to then put forward as his own work – the mayor takes the requests and transforms them into something else.”
Also on Monday, Media Trackers sent an open records request to Bungert asking for essentially the same documents the PG had requested. The PG reported that several other Wisconsin communities make departmental spending requests available to the public. The PG also reported Green Bay City Alderman are not allowed to review the initial spending requests.