Oshkosh (920) 236-4977 WINNEBAGO COUNTY Fox Cities (920) 727-2888 ERIC D. SPARR P.O. Box 2808 FAX (920) 236-4952 DISTRICT ATTORNEY Oshkosh, Wi 54903-2808 winnebagada@da wi,aov 1am writing in response to a complaint that was received by this office against the University of Wisconsin Oshkosh regarding possible open records violations. The complaint addressed two separate incidents in which violations are alleged. The first incident addressed a journalist's attempts to acquire records related to Native ‘American remains that were in possession of the University. The violations alleged included delay in providing the records, as well as redactions in the records that were done without justification. The second incident addressed a journalist's attempts to acquire records relating to the Oshkosh Football Factory. The violations alleged included delay in providing the records, which was exacerbated by issues concerning attorney-client privileged communication and public email use The complaint received by our office was very thorough and detailed; the complaining journalist clearly evinces a strong understanding of Wisconsin's Open Records laws. It is also noteworthy that Hartman, the attorney serving as the Chief Compliance Officer (Records Custodian) at the time of the alleged violations, and the attorney who is presently working in that capacity for the University, have both made themselves available to speak with us and were cooperative and helpful in working through the incidents | also note that the complainant has retired and relocated out of state. The Chief Compliance Officer has also left employment with the University and now practices with a private law firm. Neither of these facts negate the issues raised but are worth noting as they do influence my decision as to how to move forward, either formally or informally. Our analysis begins with Wis. Stat. § 19.31 which states: “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”Itis clear from the statutory language that there is a strong presumption that public records should be available. However, there are exceptions and limitations created by statute or common law and there are specific requirements when public records requests are denied in full or in part (as in the case of redacted records). NATIVE AMERICAN REMAINS: The first matter raised by the complainant deals with a request for records regarding Native American remains being retained by the University. Two issues are presented: first is the time of the response, which came 76 days after the open records request was made; second are the redactions made with no explanation given to the requester. There is no indication that the records requested were voluminous or presented any challenges in acquiring. Wis. Stat. § 19.35(4) addresses time for compliance, as well as procedures. Sub (4)(a) states: “Each authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority's determination to deny the request in whole or in part and the reasons therefor.” (emphasis added) The Wisconsin Department of Justice's policy’ is 10 working days for a limited number of easily identifiable documents. More generally, the DOJ notes? that requests for public records should be given high priority by entities, but also that “reasonable time” can be dependent on matters such as staff and other resources, as well as the extent of the request and related considerations. Hartman explained that redactions were made on the advice of the UW Office of General Counsel (GC) and that the criterion used was if the location was specific enough that a reasonable person could locate the site and if the information was not in the public record, they would redact. Hartman also noted that the decision also took into account Native American Graves Protection and Repatriation ‘Act (NAGPRA) concems. The explanations provided by Hartman do help explain the lengthy amount of time to response, but 76 days seems long. Whether this is attributable to the OGC or to the University is unclear. | do believe revisiting protocols at both entities to be more in line with the goals of Wisconsin Open Records laws is in order. The complainant indicates that he received no explanation for the redactions as required by Wisconsin's Open Records laws. Hartman explained to Investigator Verwiel the reasons for the redactions, as outlined above. The complainant believed at least some of the redactions were arbitrary based on his finding an unredacted copy in the University archives. | am asking that the University provide the complainant with unredacted copies or, if they believe the redactions to be appropriate, to provide specific and sufficient reasons for the denial, so that the complainant can assess whether seeking a Writ of Mandamus is an appropriate next step. According to the DOJ Open Records Guide, the requirements for specificity and sufficiency together protect against arbitrary denials by showing that a records custodian has exercised judgment and also in Department of Justice. (2019). Wisconsin Public Records Law Compliance Guide. PRL-GUIDE. pal tewi.us * See previous reference,provides the basis for a requester to seek relief for a denial through the courts. Denials can be complete or partial via redactions. If a document is provided in part, but contains redactions, those redactions require the same specificity and sufficiency to justify the redactions. OSHKOSH FOOTBALL FACTORY The second matter deals with allegations of unreasonable delay as well as denial of some records due to attorney-client privilege and whether that denial was appropriate. While the latter records were later turned over, | will address that matter in order to provide clarification moving forward. Utilizing a government email system generally makes those emails public records, subject to disclosure unless an exception applies. The Supreme Court has recognized an exception for purely personal emails, however the emails in question here related to possible misconduct or inappropriate activity, which would not qualify for that exception. The Wisconsin Supreme Court in Wis. Newspress, Inc. v. Sch. Dist. Of Sheboygan Falls, 546 N.W.2d 143 (1996), stated that exceptions to disclosure created under the common law or by statute still apply under the open records laws. Therefore, attorney- client privilege could apply and be a reasonable basis for non-disclosure. As noted above, the denial would have had to be expressed, along with specific and sufficient reasons supporting that denial, such that a reviewing court could assess the rationale. A review of the emails would also require differentiating between protected attorney- client communications versus non-protected communications. Just because one party in an email is an attorney for the other does not automatically result in an exception based on attorney-client privilege. In the instant case, the attorney-client communications, either in whole or in part, relating to non-legal advice would not meet the criteria for a denial and should have been disclosed. Also, as a fact in the instant case, the emails in question which were forwarded to a non-attomey third party via the same university email system negates the attorney-client privilege, making those emails public records subject to disclosure. Finally, the Wisconsin Court of Appeals stated in Journal/Sentinel, Inc. v. School Bd. Of Schoo! Dist. of Shorewood, 186 Wis. 2d 443, at 460, that attorney-client privilege “applies only to confidential communications from the client to the lawyer; it does not protect communications from the lawyer to the client unless disclosure of the lawyer-to-client communications would directly or indirectly reveal the substance of the client's confidential communications to the lawyer.” The initial response to the complainant's open record request excluded 12 emails, presumably due to attorney-client privilege. The first problem is that there was no notice provided that the first request resulted in a denial of 12 emails. Instead it appears that the emails were simply not provided. This is contrary to the requirements that denials be communicated as well as the reasons for the denials. Had the complainant not been aware that there were more emails that had not been tured over, the remaining 12 emails would have been kept from the public. The persistence of the complainant ultimately led to the turning over of the 12 emails, but that brings us to the second issue: delay.The second issue relating to the Oshkosh Football Factory is the 292 days to fulfill the initial open records request and the 335 days to turn over the 12 emails that were not initially disclosed. Itis a bit unclear about the timing of the initial request and the subsequent narrowing of the information requested, as there were intervening ‘exchanges between Hartman and the complainant. There was also time taken for Hartman to confer with the UW Systems OGC. Alll of these time frames appear to be unreasonable. In the instant case, a reporter was attempting to uncover misconduct or illegal activity by University employees. Delays in turning over relevant records kept the community from being aware of issues in a timely manner. These delays also likely created a staleness to the news regarding the underlying events when they were finally disclosed. The inquiry by the complainant began on January 3, 2022, after a sudden, unexplained resignation by a University employee in late 2021. By delaying the release of the records by 11 months, the public was kept in the dark about the controversy for a substantial period of time. This is very much contrary to the purpose of Wisconsin's Open Records laws. After speaking with all of the relevant parties and reviewing the results of the investigation, | believe this matter merits an informal resolution consisting of the following: 1, Providing this review to the new UW Oshkosh Chief Compliance Officer so they can address internally the importance of responding to open records matters in a timely manner as is required under Wisconsin's Open Records laws and asking that they review and make any necessary changes to their current protocols and/or provide training to their staff who carry out these matters to better comply moving forward. 2. Providing this review to the new UW Oshkosh Chief Compliance Officer so they can address internally the need for providing specific and sufficient reasons to accompany denials, including partial denials, such that a requester and reviewing court can assess those reasons. 3, Request that the new UW Oshkosh Chief Compliance Officer conduct their own review of the Native American remains document redactions and either provide the complainant with unredacted copies or provide the complainant with written specific and sufficient reasons for the redactions such that they can better assess and decide whether a Writ of Mandamus should be pursued. ea ‘Christian Gossett Deputy District Attorney February 6, 2024