Breaking down a Wisconsin police group’s absurd interpretation of Act 253

An open-records attorney’s closer analysis of this “hasty and confusing attempt to restrict access to public records.”

Police around Wisconsin gained a helpful tool for obstructing access to body-camera footage earlier this year. Act 253, enacted in March, allows law-enforcement agencies to charge public-records requesters for the costs of redacting audio and video material. Tone Madison reported on the implications of the new law in June. We published a follow-up piece in July that reflects on our own experience trying to get body-cam footage from the UW-Madison Police Department under the new law. We hired an attorney, Tom Kamenick of the Wisconsin Transparency Project, to contact UWPD on our behalf. But as we reported in September, UWPD still isn’t budging or meaningfully clarifying its own interpretation of the law.

Act 253 is bad enough on its face. It allows police to charge redaction fees they previously could not. It subjects records requesters who run afoul of the law to a $10,000 fine—a punitive measure that is essentially unheard-of anywhere in American open-records law. But its most disturbing feature is its ambiguity. This short, novel, and poorly-worded law invites police to stonewall records requests through arbitrary and nonsensical interpretations. 

For now, they have a free hand to do so. The courts have not yet weighed in on the law, nor has Wisconsin Attorney General Josh Kaul issued formal guidance on its meaning. This is a good time for police to test Act 253’s limits. 

The Wisconsin Chiefs of Police Association (WCPA)—one of the groups that lobbied in favor of the bill—gave police a blueprint for this free-for-all with a legal white paper issued this summer. In the paper, two attorneys interpret Act 253 in favor of broadly applied fees and narrowly applied exemptions. All of this is about to become every Wisconsinite’s problem, because as police agencies around the state begin taking advantage of Act 253, a lot of those agencies will likely be following WCPA’s guidance.

Kamenick has written a lengthy response rebutting WCPA’s absurd and at times seemingly baseless reading of the law, with the subtitle “A Hasty and Confusing Attempt to Restrict Access to Public Records.” We’re sharing it in full here, for anyone who’d benefit from its extensive insights. It’s downloadable in PDF form and embedded below. This is a formal legal analysis, so it’s a dense read. Kamenick wants it out there as a resource for attorneys, open-government advocates, and records requesters confronting Act 253. 

“This isn’t meant to be a column generally telling people about their rights under the Open Records Law or the new provisions, but instead a forceful legal argument for particular interpretations,” Kamenick explains to Tone Madison in an email.

That said, the force and conviction of Kamenick’s arguments will hit home for any reader:

It should be clear by now that Act 253 was poorly conceived. It was written confusingly. It permits law enforcement agencies to be paid twice for the same work (first by taxpayers and again by requesters). It leaves vital questions unanswered. It places unreasonably high penalties on requesters who make simple mistakes. 

Kamenick’s analysis (which builds on some of the arguments he made when writing to UWPD on Tone Madison‘s behalf) reminds readers that Act 253 is a part of Wisconsin’s Open Records Law (ORL). Anyone implementing Act 253 still has to obey the larger spirit and letter of the ORL. That’ll create a big problem for police if they ever have to explain their draconian interpretations of Act 253 in court, because the ORL literally tells people how to read it. Right at the top of the statute, the ORL declares that its provisions “shall be construed in every instance with a presumption of complete public access.” 

Kamenick takes aim at a few specific claims WCPA makes about the new law’s meaning. WCPA claims that police can charge requesters for not just the cost of redacting material, but also for the cost of “time spent identifying required redactions,” which is quite a different matter. The punitive provision in the law hinges upon whether a requester is using audio or video records for “financial gain”—a term that the law does not bother to define. WCPA argues that this term would apply to anyone using the records “for purposes of trying to make money, whether for themselves or another.” That’s an extreme read of what is already the most dangerous aspect of the new law. Kamenick breaks this down in his response:

Without analysis, [WCPA] claims that “financial gain” includes using the records “for purposes of trying to make money, whether for themselves or another” (emphasis added). But the law says that a requester must certify that “the requester will not use the audio or video content for financial gain,” Wis. Stat. § 19.35(3)(h)3.a. (emphasis added), not that somebody else will not use it for financial gain. How can an individual certify that no other person will use it for financial gain? Particularly given the harsh sanctions for false certifications, a narrow construction is appropriate. WCPA’s interpretation would also lead to absurd results. If a requester makes a video freely available, the requester would have no way of stopping another person from using it for financial gain, making any penalty—much less $10,000—manifestly unfair.

In a truly chilling moment, the WCPA paper instructs police agencies to “consider the identity and motivations of the requester.” That’s a major departure from the norms of open-records law. But unfortunately, that passage is an accurate reading of Act 253. That’s exactly why it’s important to keep bringing public attention to this new law, and to give people the tools to fight back.