This is the 12th in our series of interviews with Sunshine Activists from around the country.
Our goal is to interview ordinary citizens who use open records at the state and local level to promote greater awareness of and insight into the local governance.
Today, we’re pleased to present an interview with John Washburn, a sunshine activist in Wisconsin who blogs at Washburn’s World and who made headlines in November and December 2007 because of the open records requests he filed asking for copies of e-mails from Texas governor Rick Perry
- What year did you file your first open records request?
February 15, 2005
- What documents were you looking for?
Election records for the November 2, 2004 election. Specifically, the inspectors’ reports, poll lists, and machine tape reports for the 312 wards of the City of Milwaukee.
- Did you get those documents?
I eventually got them on July 11, 2007.
- Charles Davis of the National Freedom of Information Coalition has talked about having “a FOI moment”. Have you had “a FOI moment” and can you describe it?
I have had two. The first is the moment Mr. Davis speaks of and that was in late March, 2005. After an extended hassle with the city attorney of Milwaukee, I was granted access to inspect the election records. When I returned two days later to make copies of the wards where the number of ballots cast compared to the number of ballots distributed to voters reconciled the least well I was denied access to copy or INSPECT the records I had reviewed earlier in the week. The anger from that FOIA moment drove me to doggedly pursue those particular records for two years. And it was worth the effort given the numbers of wards where these simple numbers (ballots cast as reported by the machines and the number of ballots given to elector as reported by the poll lists) do not reconcile.
The second FOIA moment was in September of this year and was more profound. I asked for the backup copies of the memory cards used in voting machines in several surrounding municipalities. Both state and federal law require these records be retained for 22 months so I expected to be told the records were unavailable because the election data on the memory cards was a trade secret. Declaring election data is a trade secret has been the ruling for much election data around the country. Instead, every municipality stated there was no such records; no such backups of the memory cards had been made. A state law passed back in 1989 makes backing up these memory cards (election records) mandatory. Apparently it has never been enforced at either the state or federal level. This FOIA moment was the realization that it was for “just such time as this” that FOIA laws were enacted. The FOIA Laws are there so that sovereign citizens in a free republic can keep a vigilant and eternally watchful eye on those in power.
One of the complaints against the King of England as one of “the repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny”, was that “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.” Placing public records out of reach of citizens exercising their DUTY to monitor and control the activities of those in power is for the sole purpose of fatiguing citizens into compliance with their measures.
- What is the worst (or funniest or most obstructionist or most outrageous) reply you’ve ever received?
The funniest and most outrageous were the same. It was the reply dated November 27, 2007 from the Office of the Governor of Texas stating it will take 31.5 hours to copy the headers (addresses and subject line only) of emails from the server to a single CDROM disk. I laughed out loud when I read it.
- How quickly do you generally receive replies to a request?
In Wisconsin, except for the one from Milwaukee, every request, including subsequent requests to the City, have all been filled within two weeks; some free of charge. In Florida the one I helped with was “filled” within two weeks as well. We contend the records FL provided were unresponsive, but lack the resources to pursue this at this time. The pending Texas email requests have not been fulfilled yet, so the answer is something more than 4 weeks.
- About how many open records requests have you filed?
One in Florida for items related to the 101 software components found on Florida’s 5 certified system. As of November 29, 2007, I have filed 7 in Texas for emails. In Wisconsin I have filed perhaps 70 requests for various election records from about two dozen municipalities, 4 counties and the State Elections Board.
- How do you let your friends, neighbors or the local media know about the documents you get?
Publish items on my blog, WashburnsWorld.blogspot.com and send out the sporadic press release.
- Have you run into any trouble as the result of filing open records requests?
Nothing other than simple obstruction.
- What’s the most significant political outcome that has resulted from the work you do?
The improvement in the quality and completeness of election records in the City of Milwaukee between November 2, 2004 and November 6, 2006 is amazing. I am unsure though if my work had much to do with this. The current election director, Susan Edman, deserves the credit. She has made it clear to her staff that while perfection may be unattainable it is the goal when running an election. I think my influence for Ms. Edman is I am the boogey man to cite as an example of the citizens and reporters who will be double checking the election records in the weeks following the election.
- Has your local newspaper ever commented on the work you do? Favorably or unfavorably?
Local papers? No. The Texas papers such as the Fort Worth Star-Telegram on the requests for Governor Perry’s email, yes. All press to date has been favorable.
- What’s your best advice for other “Sunshine Activists”?
Stick to it and be polite. My coach in high school said half of winning is showing up. Government policy is set by those who show up. Show up and be polite because you WILL need to go back if for no other reason than to pick up the records. There is no advantage in taking the rejection, delays, and endless requests for “clarification” personally. You will just make an enemy out of someone you don’t have to. Better to have the public official classify you as a polite pain in the ass, rather than want to call the police when you show up.
- What do you know now that you wish you had known when you started?
I wish I had read “A Guide To Hiding Records: How to Avoid Complying with Wisconsin’s Open Records Law” sooner. It lets you recognize the dodge being employed. Knowing the tactics of the hiding “game” makes it easier to not personalize its effect you vis a vis the records you want.
- If you could change your state’s open records law just one way, what would that change be?
Wisconsin has two kinds of public records. One is “required to be kept” records such as title information found in the office of the County Registrar of Deeds. These are defined in Chapter 59. The other is every other record and are defined an protected under chapter 19. This is the chapter on open meetings and open records. “Required to be kept” records have a presumption of “absolute right of access”. You cannot be turned down if you show up during business hours. Other records have a “presumption of access”. I believe Wisconsin election law in chapter 7 makes election records “require to be kept” records as well. This interpretation of the type of open records into which election records fall has never been tested in court. I would like the legislature to make this implicit definition of election records explicit. Election records should be clearly defined in statue as “required to be kept” records with a presumption of “absolute right of access”. You cannot be denied access to election records if you show up during business hours.
- Do you participate in any formal way in organizations that promote the freedom of information cause?
No. Unless you count my recent contributions to the WikiFOIA site.
- Are you willing to have other “sunshine activists” from your state get in touch with you?