Boots & Sabers

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1347, 20 Aug 16

Lawsuit Filed Over Open Records Format

It will be interesting to see the results of this suit.

Bill Lueders, the president of the Wisconsin Freedom of Information Council and a longtime reporter, filed a suit against Krug (R-Nekoosa) on Friday in Dane County after the legislator refused to provide him with an electronic copy of records in addition to paper copies. Electronic copies are easier to search through than paper copies.

The open records law must be “construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business,” according to the state statute.

“We think that it is clear that requesters are entitled to records in electronic format. I was told ‘no,’ and I think that’s a problem,” Lueders said.

In an emailed statement, Krug said that since he was elected in 2010, he has “fully complied” with all open records requests his office has received.

“The open records request from Bill Lueders was properly fulfilled and followed the law,” he said.

This has been an annoyance of mine for years. Every time I do an open records request for emails, they responding body insists on printing them even though I always ask for them in electronic format. One government body told me once that they do that because they make a copy of what they give me to make sure they have a record of what was given to me – just in case I decide to alter it or something. That seems like a pretty flimsy excuse.

I’ve always suspected that the real reason is to make it more of a pain for people asking for records. A government body is entitled to charge the person asking for records for reasonable fees associated with fulfilling the request. This is often 25 ot 50 cents per printed page, so a request that totals a few thousand pages can really add up quickly. Also, as Lueders points out, it makes it impossible to search through documents for key words and such.

So while Krug is right in so far as he did comply with the law and did do it in such a way that is commonplace across Wisconsin, the normal way in which open records requests are answered is unnecessarily difficult for citizens


1347, 20 August 2016


  1. CaptainNed

    “One government body told me once that they do that because they make a copy of what they give me to make sure they have a record of what was given to me – just in case I decide to alter it or something. That seems like a pretty flimsy excuse.”


    State employee here (VT).  This is exactly why you get it on paper.  This has been drilled into us by Department counsel for years.

    I understand and enjoy the ease of searching digitally, and use it in the day job.  That said, no matter what level of protections you put on a PDF file they can be hacked and altered by someone who has a vested interest in that hack.  The legal back & forth over the proof of what was delivered vs what was received is miles easier when it’s photocopies over PDFs.  It may slow down your process, but it avoids a whole lot of pointless litigation cost on the backside.

    One of our core repositories is an exact duplicate photocopy, attested to by the Records Officer, of every response to a public records request.  Given the state of document ID law, it’s the only way we can go.  It’s what stands up in court should it be questioned.

  2. Owen

    Thanks for the insight, Ned. That makes sense, but seems antiquated. I’d be curious to know the real risk involved here. There are plenty of electronic systems of record (or “sources of truth”) that stand up in court and one would think that a digital copy would be sufficient.

  3. CaptainNed


    While digital files can easily be secured using digital signatures, the veracity and authenticity of such signed files is still an evolving target in litigation.  The veracity and authenticity of photocopies has been legally accepted for decades.  Once legal decisions/opinions coalesce and accept digital signatures and the proper way for generating same, we’ll move to that tech.

    We fulfill public records requests because we have to.  We certainly do not want to get bogged down in pointless litigation on a he said/she said basis.  We also have a duty to provide the requested records in a legally authentic and verifiable manner.

    Besides, scan those docs to PDF on your own with a good copier and you can OCR the whole lot and perform your digital searches.

  4. jjf

    CaptainNed, I don’t see your point. In all cases the government records custodian retains the original document, be it electronic or paper.

    If there’s a question about whether a document was later altered or forged by a requester, the government would always be able to show the original. It’s not as if a paper document can’t be altered or otherwise forged. Such operations were possible in the decades past and are much more trivial today. For that matter, we could also be justifiably suspicious of whether a malevolent government actor could decide to alter or misrepresent a document.

    The State’s paper copying cost is often unnaturally high. As Atty. Tom Kamenick at WILL often says, if Kinkos can make a profit at closer to ten cents a page, why should a government office charge 25 or 50 cents per page?

    Providing a record in electronic format costs less than printing and shipping paper. It can be easy to do. Many record requesters would be quite happy to get a Word or PDF sent in seconds by email.

    I would also argue that electronic documents in their original format contain various types of metadata that can be useful to the civic discussion.  For example, a Word document includes as original author name, creation time, and modification times. (There have been cases where a legislator passes off a document created by their campaign or a lobbyist.) A printed Outlook email doesn’t always show full email addresses (just human names and nicknames) and without significant tinkering, the blind carbon copy recipients. If the attachment was an animated GIF image, do you think a printed copy will suffice? An Excel spreadsheet naturally contains logic and formulas that can only be confirmed with an electronic copy. (You need Kathy Nicklaus’s spreadsheet to understand the error that made the headlines in a Supreme Court race a few years ago.) In these cases, a printed version does not represent all of the information present in the record.

    I’m slightly sympathetic to arguments about the redaction of records, where a government official does have an obligation to black-out sensitive information. This might be difficult to do electronically in some cases, but becomes easy with a printed copy and a marker.

    You can nest these permutations as deeply as you like, of course. There are plenty of cases where original Outlook emails were printed to paper, then scanned and converted to PDF and provided to requesters in that format. Like repeated photocopying, information is lost as the copy degrades.

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