Tuesday, January 31, 2012

GAB Should Release the Petitions

Was the GAB justified in petitions delaying the release of recall ? It's hard to see how.

Let's start with some recent case law. In an 8-1 decision, the United States Supreme Court recently held that persons who sign petitions to place an initiative on the ballot have no privacy interest against public disclosure of the petitions. Doe v. Reed, 561 U.S. __ (2010)

Reed involved a federal constitutional challenge to Washington state law compelling disclosure. The GAB, should it decide to withhold signatures, would presumably rely on Wisconsin law (which the Reed case, of course, does not address) which does permit personal identifying information in public records to be withheld "if the the public interest in allowing a person to inspect, copy or receive a copy of such identifying information outweighs the harm done to the public interest by providing such access. " Sec. 19. 36(8)(b)

Reed is instructive on this issue, holding that there can be no privacy interest when people have committed what is essentially a legislative act. This increases the public interest in learning their identity (so that the validity of the legislative act can be verified) and the reasonableness of any expectation of privacy (because signatories know - or should know - that they have undertaken an act that must be publicly verified.)

The same reasoning applies to the "balancing exemption" referred to above which must, in any event, be applied in light of the open records law's strong presumption in favor of disclosure. See sec. 19.31 ("The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.")

I do have some sympathy for the argument that state laws compelling disclosure may need to be constitutionally curtailed when they facilitate harassment and retaliation. But the idea that people who want to recall Governor (who constantly tell us they embody the will of the "people of Wisconsin") will be subject to harassment or retaliation to an extent that defeats the public interest in open verification of the recall is ridiculous.

Concern has also been expressed about the potential threat to victims of domestic abuse whose address will now become public. Perhaps that might justify a short delay to mask the identifying information of those few individual although, in the internet age, the likelihood that anyone's address is truly private is small. In any event, this would not seem to be a sufficiently strong interest to keep one million signatures seeking recall of the state's highest elected official from public scrutiny.

Update: Bill Christofferson suggests that there is a difference between open records and online records and that's true. He is wrong, however, to suggest that this makes an open records request for these petitions a non issue. The GAB has presumbably scanned these petitions into a searchable electronic data base. That is now a "record" subject to production under the open records law. They don't have to put them on line. They do have to produce them as they have them.







15 comments:

John Foust said...

Wow, amazing synchrony of right-wing talking points between pundits this morning! The secret web-based mail systems must be working.

Where did the GAB say that these petitions wouldn't be open records? As with any record, the custodian is allowed the time to conduct a balancing test. With highly contested issues, it's not unusual for public access to records to be questioned by legal experts on all sides.

You among others led the charge to pressure the GAB to undertake the extraordinary measures of digitizing and database-ifying the petitions. You and the WisGOP did not prefer the normal state of affairs for most public records, which would be open-book office hours and fifty-cent per-page copying charges.

I think what you're really saying is that the WisGOP told the GAB to jump, and they didn't jump fast enough and high enough, so the WisGOP is now raising its voice.

How long would it take to effectively Woznicki every signature?

For more WisGOP fun and logic-following, compare and contrast the recent law that blocked public access to and database-ification of the concealed carry permits.

The the harassers aren't hard to find. In fact, a conservative group leads the charge in this breitbarting.

Anonymous said...

It's more than strange to see a law professor not able to understand the difference between "releasing" open records and posting them online.

The petitions have been released, last week, to Walker. The petititons are accessible to the public at a dozen sites around the state already, the Walker offices around the state, where -- so we're told by his campaign -- thousands of Wisconsinites have seen the petitions for days now, and the GAB office.

So the GAB has met the requirement of the law, yet the law professor suggests otherwise. Weird.

John Foust said...

The GAB has presumbably scanned these petitions into a searchable electronic data base.

Two separate tasks. Scanning is the operation we've been watching on the webcam. The result of that is the PDFs you can view online.

Running the handwriting recognition software is another, and that's coupled with human assistance to correct errors, and the result of that will be a searchable database that could be used to find possible duplicates in an automated fashion, or to make it easier to harass your neighbors.

Rick Esenberg said...

Anon 1:57

You fail to read carefully. As the post makes clear, the requests are for the digitalized version of the petitions. If they exist, they are records. Complying with the request would not require that the petitions be posted online. They would require that the digitalized files be produced.

Anonymous said...

Rick, you're not getting the technology and/or you're failing to write carefully. We have what you wrote.

Anonymous said...

Rick is just carrying water for the state party apparatchiks who are desperate to twist, prolong and otherwise convolute the process. Move along, there's nothing (new) to see here.

TerryN said...

When I see this, "apparatchiks" I know open government is not a priority to the commenter who wrote it. After all it's a communist term. Makes a lot of sense to those of us in the free world who hate communism.

John Foust said...

Darn, TerryN, you had a chance to compare him to Hitler and you missed it.

Mike Plaisted said...

OK, the GAB thought about it for a day and now they are all on-line. The GOP and their acolytes (god, I hope that's not as offensive as "apparatchiks") can now call and harass people who signed the petitions. I can't WAIT to get that call myself.

After squawking about it all day on the radio and Esenberg dutifully playing along with the talking-point, the increasingly-desperate Walker defenders are going to have to go somewhere else to distract the public from the crimes committed in the County Executive suite while Walker was there.

Unfounded claims of "everybody does it", anyone?

Rick Esenberg said...

Hey Mike

I agree. We're awful people. We call GAB on what seems to be a bad decision and it promptly decides to do the right thing.

Am I surprised? No. The objections that were raised were beyond weak. But then that's the way politics work. Sometimes people take bad positions and then other people push back. The bad decisions get changed.

And now those damn Republicans will actually see if there really are a million signatures. The bastards! I mean, really, the Democrats wouldn't do that. They would just accept whatever the people trying to recall their officeholders said. They wouldn't call people who signed a petition to see if they really signed it ...

Oh, wait. They did do that. Was that harassment?

And let's talk about criminal activity. As I posted, if Rindfleisch and Wink did what they are alleged to do, then they committed crimes. I question whether it should be a felony but I have never written that it was "all right" because "every one does it."

But what if it turns out that there was wholesale fraud in the petition process. Anectodal evidence suggests that this may be so. Fraud is fraud even if there are enough valid signatures. Can I count on you to call for vigilant prosecution - class I felonies! - of those who have engaged in criminal activity within the offices of the Democratic Party and affiliated organizations.

Rick Esenberg said...

Anon

I don't see why you can't understand the need to produce a digitalized record. Not only MacIver, but the Freedom of Information Council and Milwaukee Journal Sentinel apparently can because they also made requests.

In fact, if they pursue the requests, I think that the GAB stll has to honor them even if they have put this stuff online.

It is true that running the software recognition software on that data base would be a different matter but that isn't what the media organizations requested.

John Foust said...

Anectodal evidence suggests that this may be so. Clever trick, spinning anecdotes into "evidence". I can invent anecdotes with my eyes closed. Where'd that news story go about the guy who signed eighty times? Is that the kind of evidence you're supplying? Are we back to your Let's assume that there are 5,000 people who vote an average of 25 times idea?

"Digitalized" is indeed a sometimes Briticism but we 'Mercians use "digitized" or more conventionally in this case, "scanned." Paper gets turned into a digital picture that's placed in a PDF file container. Attempting to recognize the handwriting and turn it into a sequence of characters for fields in a database is a separate operation.

Allowing a pause to weigh whether a record should be released is not a "bad decision." It's the open records process as it has been defined by statute, practice and OAG for years. Walker's (dozen?) teams have the records. They're conducting the authentic legal challenge, as allowed by law. I don't see the mechanism by which the "Verify the Recall" / "True the Vote" team sends their results to Walker or the GAB. They've convinced an army of volunteers to read and type all those names, and they're collecting a separate list of people who said they didn't sign. Wow, what will they do with those databases, and who's paying for them?

What we'll see over the next few weeks is more unsubstantiated anecdotes... more noise, more inflation of uninformed opinion into news stories. Will all that make Walker look better? Will it be enough to drown out the criminal complaints?

But if WILL is interested in cases about the response time on open records requests, I can refer a guy who made a request for a few emails from Walker's office in November, who still does not have a response.

TerryN said...

Foust, you did it for me. Good boy!

Mike Plaisted said...

You never wrote that everybody does it? "If you spend eighteen months scouring through the activities of any elected official with substantial appointed staff, you are probably going to find a few Winks and Rindfleischs." No, you won't. And the "fact" that Rindfleisch could have "walked across the street" and wouldn't be in trouble (maybe) begs the question -- why didn't she? Proximity to Walker -- 25 feet away -- appears to have been integral to her assignment. Walker wanted her there, to keep her fundraising on track, seems to me.

Nobody is or was hiding the petitions. Walker's had them since last week. The GAB had fielded a concern from a stalking victim, thought about it for a day, and then let them go. The hysterical screeching from the right-wing message machine -- yourself included -- casting aspersions on the Boards motives, etc. was completely ridiculous.

Yeah, let me know when you find that wholesale fraud by the recall organizers. They are too smart for that and too respectful of the process and the law. How many do you think you are going to be able to knock out, Rick? 5,000? 10,000? Still a bit short, but I look forward to every honest mistake and duplicate to be played up by you and your fellow travelers as evidence of rampant fraud. After all, that's all you got.

Anonymous said...

So much for the alleged conservative mantra of individual responsibility.

Are the petitions available for people to see? Yes, the GAB made them available in one form.

Can I find get them? Yes, but I may have to do a little digging.

But, but, but...I WANT them at my convenience. Um, they are at your convenience, all you have to do is get them.

The information is made available. Now since when does it matter what FORM it has to be in to meet the standard?