Inside Look Into The Open Records Process
Since August 2020, NSM has filed dozens of open records requests with various law enforcement agencies. Everything from local police departments who were present during civil unrest to the FBI, United States Marshals, Homeland Security and many more agencies. With nine months that has passed from the civil unrest that happened in Kenosha in August 2020, we are finally starting to see a bit more of a clear picture to what occurred during the week long curfew that quelled riots and peaceful protests. I do have to say though that none of this clearer picture has come from the Kenosha Police Department which is why NSM filed a Petition for Writ of Mandamus lawsuit in March 2021. This legal fight between NSM and the KPD is getting pretty spicy, I must say. Since the KPD has been so unwilling to produce records, NSM has had to look to other agencies that were present in Kenosha last August. The Kenosha County Sheriff’s Department and the Waukesha County Sheriffs have released over 600 video clips from August 23rd, 24th, and 25th 2020 that NSM has been converting into long form videos and releasing them on the Never Stop Voices YouTube Channel. The videos are beginning to paint a clear picture not from the protestor perspective, but from the eyes of law enforcement. While the videos are not a complete depiction of what occurred, I do have to honestly say it is quelling a bit of the rhetoric that has been spread over the course of the last nine months. It’s even brought a better understanding for me finally seeing from both sides. From the various agencies NSM has received arrest records, detailed officer reports and lists of officers who were present which is important since every law enforcement agency refused to identify.
Reviewing hundreds of pages of documents that have been sent to NSM is allowing us to be able to investigate different elements during specific incidents. In several documents that we’ve reviewed we are seeing a consistent pattern with one officer in particular who is shown to be falsifying reports and intentionally leaving his name off of arrest records. In text message communication we are seeing one officer who seems a bit too excited about the Rittenhouse shooting, and militia slashing protestor tires and no arrest towards militia for vehicle damage even though law enforcement knew it was happening. While these documents are giving an insight to some level of officer corruption, other documents and videos are detailing some of the dangerous situations that law enforcement had to endure as well as riot control tools that were deployed. One video from the Waukesha County Sheriff’s Department shows protestors throwing various projectiles at law enforcement such as water bottles, rocks and various types of fireworks. While this went on for quite some time, law enforcement did not engage in deploying less lethal munitions until an armed protestor was walking around waving and aiming a handgun in the direction of officers. Amidst the chaos during this situation it appears that law enforcement brutally deployed munitions in the direction of protestors over water bottles being thrown but it was in fact to move this armed individual out of the direct line of firing at an officer. Another thing noted in documents as well as conversation with a few law enforcement personnel is the fact that the Kenosha County Courthouse, Public Safety Building, Molinaro Building and the Kenosha Police Department Jail was heavily protected by officers equipped in riot gear and eventually fencing was constructed. It publicly gives the illusion that officers were protecting buildings instead of people. What is important to note though is that these buildings house city employees and hundreds of detainees who were being held within the Kenosha Jail who eventually were transported to the Kenosha County Detention Center as the unrest was becoming more dangerous for those inside when fires started to break out.
Many of us as journalists, attorneys, citizens and the ACLU have been desperately trying to obtain records; it has been extremely challenging getting anything in return. NSM recently sat down with a records custodian who provided a bit of insight into how the open records process works and discussed various open records issues and it was eye opening. We were shown a portion of a document by an attorney who was attempting to obtain 7yrs worth of various documents pertaining to a specific officer. The attorney filed two separate requests; the first did not have a date at which the request was denied despite it being specific to "all". The second request now included a date but that request is also going to be denied and here’s why. One of the types of records pertained to incident reports and arrest records from this officer. Due to the fact the records custodian would have to dig up 7yrs worth of arrests and incident reports the request is deemed overly burdensome. The issue with this is I’m sure the reason behind requesting the records is similar to why NSM is investigating an officer with a history of falsifying records is that neither the attorney or NSM would be able to compare any of these reports to find discrepancies and potentially expose a corrupt officer. Another type of record listed in the request was for citations with this officer. It was explained to NSM that the records custodian would have no idea what type of citations the attorney was looking for as it could pertain to traffic citations the officer received while driving or pertain to complaint or discipline citations the officer received while on duty in his official capacity, so the request would be deemed vague and overly broad. For me having seen this request for the first time, I think it would be safe for a reasonable person to assume the attorney was looking for complaint and disciplinary citations against the officer, but hey, that’s just me.
NSM was shown another request filed by a main stream media outlet that was requesting emails from the Chief of Police that contained several key words. Most people aren’t aware that the records custodian does not have access to the Chief of Police computer, let alone their emails. Also, according to open records law in Wisconsin, key words are not required. We generally include them to narrow down and provide a level of specificity for records that would mention these keywords so we’re not receiving records we have no interest in. In this request there were around a dozen key words to search. If the requestor were not looking for the chief’s emails the custodian would enter the keywords into their computer and search for records. Imagine logging onto your Dell computer, going to the search tab and typing in the word “riot” and hitting enter. Whatever documents on that computer contain the word “riot” would then pop up in a display window and the records custodian would have to search through each document. This is their job. Find records that people ask for. They get paid to do this. Sometimes we know exactly what we want and other times we are searching for records that would contain a key word in order to see if there is anything of value in the records released that would provide a bit more clarity towards asking for specific records. The request was sent to a 3rd party company to search archived records. This company charges $100hr just to search the key words. When the results came back it was pretty eye opening to the amount of records that would be produced from the key words included. For example the key word “Jacob Blake” would hypothetically produce over 23,000 emails. In total with the other key words I would estimate that there were around 30,000 records. The invoice, mind you just for the search was $400. The records haven’t even been looked at yet let alone released. The news outlet ultimately declined the search for records and thank god they did because the next step in the process would be to go through 30,000 emails, conduct a balancing test on each email, and redact any biographical or confidential information and so on. Because this was a large amount of emails, the records custodian would ultimately deny the request under the claim of being overly burdensome. It was explained that most of these emails probably would never be opened by the chief. Some of them probably contained letters of distain for shooting Blake in the back 7 times, and maybe some of the emails specifically spoke of the incident between law enforcement personnel. But the requestor would never know what was contained because the request would be denied. Again Wisconsin Open Records Law specifically forbids denial of open records based on the volume of records a request could produce.
Another aspect we are seeing is departments denying requests for being vague or overbroad when it comes to not listing out specific case numbers or officer’s names. This element I find to be comical at best. When we file an open records request asking for all curfew violation tickets and arrests and the request comes back denied because we didn’t provide a case number, how would we know that information? Officers covered their names and badges, not all protestors ticketed or arrested are represented by the same attorney. It’s interesting because some departments will release these records and others deny them. With one department we asked for video footage within a specific date range and received videos. In another request NSM filed for video footage from the same department we specifically asked for Dash Cam, Body Cam, CCTV, and drone footage. The request came back that the request was overly broad. This response makes me shake my head. We know that squads were equipped with Dash Cams; we want the footage that was retained from those squads. But they make it difficult where we would have to list out the squads in which video footage may have come from and the officer’s names that operated those squads. Well, we don’t know, because you refused to identify and told people you weren’t there and didn’t exist. CCTV video footage, we know that agencies were running around during civil unrest scooping up all types of video from various CCTV cameras around the city. But NSM needs to provide more detail. Um…we said “all” CCTV video that was collected. That means we want all of it not just certain videos. It doesn’t even make sense. Now we have to go back and file a request that explains in 3rd grade language, we want all the camera footage from the exterior of the courthouse, we want camera footage from this specific street pole on this specific street. Maybe I’ll walk around the police parking lot looking inside of squad cars to see which cars are equipped with Dash Cams and conduct interviews with random officers I see and ask them if they were present during civil unrest and can I now have their names. It’s nothing but games. You know what I’m asking for, please provide it.
The other concerning element to records pertaining to any serious incident is that records are destroyed generally after 120 days if they haven’t already been previously released to the public. It brings to question when a records custodian is intentionally denying open records requests based off the volume of records a request can be produced, how many documents with pertinent information in them are being destroyed before the public has an opportunity to review them. This affects individual civil or criminal cases, civil rights violations lawsuits etc. where internal documents could be vital evidence in a particular case. As we are seeing in the John Doe Hearing surround Jay Anderson Jr. death, records are being destroyed, some never are handed over the District Attorney, and others are being created after the fact in order to cover up department corruption. There is so much information the public will never know because records are being destroyed.
In NSM’s legal brief that we filed with our Mandamus lawsuit we outlined several incidents of “selective enforcement” where with several requests records had been previously given to other outlets, NSM was specifically denied. Regardless of how the request was written, how we asked for it whether written or verbal and even explained that we were asking for the same records that were given to another outlet, where a custodian understood and acknowledged knowing exactly what NSM was asking for, we were still denied. Unfortunately for this particular custodian, they don’t yet know the trap that was set and they fell right into it. If you’re going to play chess with NSM, you better be a world champion is all I have to say. I will admit I do enjoy my conversations and this cat-and-mouse chess game we have to play with various records custodians. Even though I do enjoy it, I am unfortunately not playing a game. I’m living real life and trying to look into real life issues. We set another trap for another department when we asked for the departments training policies and the response we got back was that all department policies are listed on the public website. NSM is in possession of policies that are not listed on the website. Clearly, not all policies are for public view and one records custodian is not being honest when the response came back that there are no records available pertaining to our request.
What I find to be extremely interesting in examining our own open records requests is that we filed a request with specific verbiage seeking specific records and it was approved. In another request using the same verbiage but adapting for a different situation, the request was denied under the claim of being vague and overbroad. How is one request approved and yet another saying the same thing is denied? I believe this is a clear representation of departments not wanting to release records that could either be damaging or paint the department in a bad light.
Then you have other issues when it comes to open records requests where in one department’s policy they do not release body cam video to the public. Body cam footage is considered under Wisconsin Open Records Law as a record. So a department making an internal policy to not release this type of record is a violation of open records law.
Another department NSM visited to pick up records, I was ID’d at the counter when I asked specifically for the records being held for Kevin Glowicki, from the specific records custodian I filed the request with. ID’ing a requestor when they are picking up records that were already approved is another violation of Wisconsin Open Records Law. After several attempts to inform the personnel at this department that they were in violation of open records law, they continued to tell me they weren’t and their policy is to ID. The reason behind ID’ing was in case they needed to redact information that wouldn’t be publicly accessible. Here’s the flaw in this. When I file an open records request I list my name, title, and company name, various elements of contact information, website and mailing address. The department already knew who they were releasing records to. If anything needed to be redacted it would have been done prior to me picking up said records. ID’ing a requestor is only done in certain circumstances. I laughed at this redaction claim and pointed to the sealed envelope with my name on it. I asked if those were the thumb drives that contained records I had requested. They responded it was. I asked if all of the records contained on the thumb drive had been cleared for release. They responded they had. I responded back that the process in releasing records was already done and any need to ID me for redaction or balancing test purposes was already conducted and now asking for my ID over a gross misinterpretation of Wisconsin Open Records Law was not only inappropriate but also a violation that could be addressed with the Attorney General, District Attorney’s Office, and police department command personnel. Ultimately, the records were eventually released. We'll be recording our interactions with this department in the future to expose further open records violations.
Departments across the country are violating open records laws and unfortunately have been getting away with it for a long time and still are. Sneaky tactics being done to hide records, intentional delays in providing records so that by the time the records could be obtained they have already been destroyed. It is extremely important to have a full understanding of open records laws and understand your rights within those laws to prevent these custodians of records from violating open records laws. NSM is all about playing nice, but one thing we will not tolerate is rights being violated and laws being broken. There seems to be a pattern when it comes to the most corrupt incidents and departments that obtaining records is becoming more and more difficult while those that seek to be transparent with the public release records with no issue.
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