Public Records, Private Control
Government bodies that contract out their record-keeping can add a whole new layer of difficulty to gaining access.
With only 16 full-time employees and a population of about 3,400, the tiny village of Thiensville, Wis., has to contract with private companies to handle many of the responsibilities that larger cities might be able to handle in house.
That includes its record-keeping. Since the 1980s, the village has hired Grota Appraisals to handle its property tax assessments and records, according to Village Administrator Dianne Robertson.
That previously harmonious relationship has resulted in a court battle that is now before the Wisconsin Supreme Court, which will address the thorny issue of accessing public records held by a contractor.
The situation has occurred in other states as private companies responsible for government record-keeping have thrown up roadblocks to public access.
When governments privatize, the resulting relationships can make it harder to see public records. But when oversight of the public records is itself privatized, it can mean a whole new headache for the press.
This relationship can add new arguments to the arsenal of those who do not want to release records. One is that the records are not, in fact, public because they are held in private hands. Another, which has been a stumbling block in the Wisconsin case, is copyright protection.
The court battle started when a company called WIREdata requested detailed property records from three small municipalities -Thiensville, Sussex and Port Washington -in an electronic format to use for its subscription-based database used by real estate brokers.
The cities directed the company to the contractors that maintained the property records - Grota Appraisals for Thiensville and Sussex, and Matthies Assessments for Port Washington.
The companies said they used a program copyrighted by another company, Assessment Technologies, owned by the same man who owns Grota Appraisals, in conjunction with Microsoft Access to arrange the data. If WIREdata wanted the records, it would have to pay large fees - more than $6,600, and more if they were reselling the data.
WIREdata sued in state court and Assessment Technologies filed its own suit in federal court to prevent the release of the records. After a federal appeals court in Chicago (7th Cir.) ruled against Assessment Technologies, the contractors provided the property record information to WIREdata as Portable Document Format (PDF) files.
In January, a Wisconsin appeals court said that was not enough. The court rejected the argument that the state's open records law required only access to the raw property data, emphasizing that taxpayers footed the bill for entering the data into the electronic database.
"This inputted data, maintained at public expense in the Microsoft Access database, is as much a part of the public record as if it were written on paper property cards and organized and stored in a file cabinet," Judge Daniel P. Anderson wrote for the three-judge panel.
The court's decision was a welcome one for press advocates, including the Wisconsin Freedom of Information Council and the Wisconsin Newspaper Association, which filed a friend-of-the-court brief in the case.
"We felt that the local units of government were delegating, inappropriately delegating, their public record-keeping responsibilities to private contractors," said Peter Fox, executive director of the newspaper association.
As the case has progressed, some of the municipalities have found that it as difficult for them to gain access to their own data as it has been for the public.
One village involved in the lawsuit, Sussex, announced in February that it planned to sue Grota Appraisals because the company refused to hand over property records after the appeals court's decision, despite a provision in its contract stating that all records are the village's property, according to press reports. …