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John Foust - 
A Guide To Hiding Records


A Guide To Hiding Records:
How to Avoid Complying with Wisconsin's Open Records Law


In my experience with Wisconsin's Open Records Law and making requests of bureaucrats of all shapes and sizes, I've learned a few tricks that might help other government workers avoid complying with the requests of Open Records fanatics.

Why Avoid Surrendering Records?

Reason number one:  You have nothing to hide.  Literally.  If you haven't accomplished much, you're probably working very hard to insure no one learns that.  It's hard enough hiding it from the boss.  It's just as important to hide it from the public.  Assure the record-seeker that you have nothing to hide and that you'd be glad to help them with their request, as long as it's allowed by the law.

Reason number two:  It's none of their business.  No doubt there are plenty of facts that would make your job more difficult if they were printed in the newspaper.  Every fact can be made to look bad if twisted by someone with an agenda.  You want to hand out as few pieces of the puzzle as possible.  If you need inspiration to avoid dispensing information, imagine what would happen if everything on your desk was printed in tomorrow's newspaper.  Only you know what's best for the public when it comes to your job and whether you're doing it right.

Reason number three:  We can't do our job if we had to tell everyone what we're were doing.  Gain the sympathy of your superiors by whining about the incredible burden of supplying all the information requested by record-seekers.  Claim that revealing this information will make it more difficult for you to do the job you're supposed to be doing.  By taking as much time as possible to fulfill requests, you'll hit two birds with one stone.  One, you'll have less real work to do.  Two, you'll accomplish just as little by delaying the fulfillment of the open records requests.

Keep the above three reasons in mind while you practice the other craft of avoiding requests, as follows:

Deny the record exists.  The very fact that someone wants to see a record should give you a nice big hint that it might contain something juicy that you don't want to reveal.  This gives you a good opportunity to destroy the record.  Take it home, hide it in a filing cabinet, or better yet, file it somewhere where only your successor will rediscover it.  The shredder is your friend.  If you can't find it, they can't get it.

The law also says you need not hand over intermediate or personal notes.  Therefore, if in doubt, claim something is a note.  For example, raw data is almost always a note.  After all, this is the raw material that you spin as part of your job.  You only present cooked, digested and properly spun information.  If someone else got the raw data, they could digest the information and draw different conclusions, exposing all the hard work you did to fudge the figures.

Claim the request isn't specific enough.  This stall is always good for a few days and often inspires frustration in the requester.  After all, you just want them to go away, right?

When they ask what would make the request specific enough, say "I don't know."  It's your discretion.  "Specific" means different things to different people.  For example, if they ask for the first six memos you wrote to person X, it's easy to argue that this is not specific enough.  Be creative.

Make them pay for what they really want.  Like a parking ticket or a speeding ticket, levy a fine.  Claim that finding the record will incur a tremendous amount of time.  You can charge for time to find long-buried records.  If your budget is tight, urge your superiors to set a higher per-page copying cost to help offset those copier expenses.  You're not responsible for reducing costs.  You are able by law to charge to help offset the cost of producing some kinds of records.

Charge a burdensome flat fee for anyone who wants to see a record.  It's probably illegal, but it'll eliminate a large number of casual requests.  It will also add much-needed funds to your budget, especially if you can set a hefty fee for records commonly requested by businesses with deep pockets.  They'll regard it as an official sort of bribe, or at least the cost of doing business.

Make haste slowly.  The law says records requests must be fulfilled "as soon as practicable and without delay."  Don't deliver immediately.  If the Attorney General tells you that ten days is a reasonable response time, always be sure to take at least ten business days to respond regardless of the complexity of the request.

Push the limit and take longer than ten days.  Claim you're busy assembling their request.  If they take it to the District Attorney, that office will wave it off, and you've bought more time.

If someone shows up on your doorstep to make a request, claim you have a meeting to attend in ten minutes and that you must leave immediately.  Offer to schedule an appointment, but as far in the future as reasonably possible.  In this case, "practicable" means your schedule is very full.  Who's to say that you're not accommodating the requester?  How are they going to prove you are delaying on purpose?  You have a busy schedule, don't you?  If you know the requester isn't available at a certain time, insist that's the only available slot you have.

Similarly, schedule meetings with your superiors and governing Boards to discuss the issue, but be sure that all decisions are pushed into the next meeting, and that the next meeting is next month.  Again, who's to say you're not working on the issue and getting opinions from all involved?

As soon as you've responded to the requester, regardless of whether you refused their request or surrendered the wrong records, be sure to inform all your superiors that all open records requests have been handled properly and there's nothing to worry about.

Drive them nuts.  Be sure to repeat this "as soon as practicable and without delay"  phrase to the requester as often as possible with a straight face, especially while scheduling other delays.  Dare the requester to point out your hypocrisy.  Once they do, use the incident to gain more sympathy from your superiors.

At every turn, paint the requester as a lunatic.  As you spend more and more time on these requests, your superiors will encourage you to find under-the-table methods of discouraging future requests and be more willing to look the other way when you actually break the law.  They'll join in your little game if you can use it as a team-building exercise.

Don't say more than you have to.  The law says you need to surrender records, not explanations.  Do not respond to any general questions.  If they're asking general questions, say that those do not constitute a valid open records request and that there's no need to respond.

Don't look happy if you don't feel like it.  You may be a public servant, but always keep in mind the shining example of the clerks at the driver's license desk at the Department of Transportation.  If a requester asks a question, give them a blank stare, ten seconds of silence, followed by the words "I don't know."

Make mistakes.  You can always ask for forgiveness.  Surrender the wrong records.  Forget to hand over some of their request.  Split up the request into pieces, give out some, forget others.  When they complain, say their request was so complicated and that you were so busy, you made a mistake. 

Mea culpa!  Big deal!  "What are you going to do, make a Federal case of it?"  It's not as if you're going to be fired for making a mistake.

The best mistake destroys a record.  Zap those e-mails, and later claim you didn't know you had to keep them.  Don't make backups.  Claim you don't have the budget for that.

Erase audio tapes as soon as someone asks for them.  These sorts of literal records are the most dangerous to release.  After all, everyone knows the minutes of a meeting are the first opportunity to re-write history.  One phrase in the minutes like "It was the general consensus that we should move ahead" will clear away the evidence of an hour of dissent on a tape.  Losing the tape is an important part of preserving the official record of the minutes.

If someone asks for an electronic record in electronic form, print it out and destroy the computer file.  A database on paper is almost worthless for research, but the printed version probably complies with the legal requirements for preservation of the record.

On the other hand, if the requester makes a mistake of any kind, say a lot about it.  You'll look smart for pointing it out, and it'll build sympathy with your superiors.  Point out that frivolous and repeated requests need not be answered.

Fake ignorance.  This excuse can be especially powerful when you want to eliminate access to all the past records, in order to gain a chance to sanitize them for the future.  Attempt to flatter the record-seeker and gain sympathy by claiming they know more about the open records law than you do.  

By pretending not to understand the fine points of the law, you can demonstrate to your superiors that you're willing to learn.  You can spend time researching the law.  This could take a long time.  Use it as career advancement and a chance for a field trip.  You might need to be sent to a seminar.

Meanwhile, the record-seeker will be forced to explain the law in greater detail, researching and citing case law, referring to other authorities, and consulting with the district attorney or state attorney general's offices.

All this causes a wonderful delay.  In the end, you can claim that you didn't realize you were doing it all wrong, but that you'll do it right in the future.  Armed with your new knowledge of the law, you can cycle again through the reasons above, except this time you can claim the law is on your side.

Invent authority.  Telephone calls are your friend.  Claim that an authority confirmed that you need not supply a record.  There's no recording of your phone call.  When you describe the situation to the authority, you can spin the situation any way you want.  After all, you already know the answer you want, you're just looking for confirmation.

When you call the League of Municipalities or the Attorney General's office for advice, be sure to spin the facts in your favor.  Leave out important details.  Give your side of the story.  Return with an answer in your favor, and the burden is back on the shoulders of the requester to prove you wrong.

Hire attorneys.  This will show your bosses that you are serious about doing the right thing.  It's the taxpayer's money and the taxpayer's information, so it's your responsibility to spend their money to keep the records out of their hands.

Find an attorney who will write nasty letters saying whatever you'd like to say.  Remind them that their arguments need not be grounded in the law, and that there's more money available where this came from.  

Teach the attorney about these rules and tricks of the trade, if they don't know them already.  Believe it or not, you may be more experienced in these tricks than a lawyer.  After all, the lawyer has to please the client eventually or they don't get paid.  As a bureaucrat, there's no need to satisfy the public's request for information.