Never Stop Media Sues KPD for Records
People in and out of news/media business use state and federal Freedom of Information Laws constantly to find out what’s happening in their communities and to hold public officials accountable. But it’s not as easy as picking up the phone and asking questions or even filling out a simple form, asking for records has proved difficult. Understanding how open records requests work today almost requires a law degree, a bottle of Scofflaw Gin and a sturdy wall to bang your head against, due to the confusing verbiage and the amount of restrictions applied when looking for transparency.
Generally speaking “it is public policy 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. The public records law must 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”. And there are many situations when records are denied, especially for those who don’t understand FOIA requests. Most people believe they are entitled to any record that exists even if that record belongs to a private business and unfortunately we can’t just have access to everything and anything that we want.
Recently, with protests all over the country and the involvement of high-profile attorney’s, Civil Rights Activists and the ACLU, open records are in high demand. But police departments and city government have been breaking the law in an attempt to not disclose to the public what happens behind closed doors. Abuse of power and borderline criminal tactics are being used to discourage citizens from obtaining these records from high fees imposed, losing requests, denying based on misinterpretation of open records laws to blatantly ignoring the requestor.
For the inexperienced requestor this would discourage them to walk away without pursuing records further. For me as a journalist I have spent countless hours researching the laws and guidelines surrounding Wisconsin Open Records Laws and reading hundreds of Supreme Court rulings surrounding the different types of access or denials to certain types of records. Thanks to Backroom Coffee Roaster, dozens of stalkers and the need for public transparency, I’ve had a lot of sleep-ness nights to educate myself.
We have seen outrageous dollar amounts attached to open records requests across the country in hopes that the requestor will no longer want the records due to the high dollar amounts. There have been invoices with thousands of dollars in fees attached for records that would normally only be $10 for a disc containing documents or potentially no charge at all which some departments do. What do police departments not want the public to see when these high price tags are attached? Why are some departments complying and others are attempting to hide records? I asked myself these same questions and when I see this it sparks my curiosity and makes me want these records even more. While every state has some differences, I’ll outline Wisconsin for the simplicity of this article. When it comes to fees being assessed: Wis. Stats. 19.35 (3)(a) states “An authority may impose a fee upon the requestor of a copy of a record which may not exceed the actual, necessary and direct and direct reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law.” Under sub. (3) the legislature provided four tasks for which an authority may impose fees on a requestor: “reproduction and transcription,” photographing and photographic processing,” locating,” and mailing or shipping.” For each task, an authority is permitted to impose a fee that does not exceed the “actual, necessary and direct” cost of the task. The process of redacting information from record does not fit into any of the four statutory tasks.
Recently, Never Stop Media heard of a situation in Kenosha Wisconsin regarding a black male who was stopped while walking based off a “concerned citizen call” to the department. Discrepancies surrounding the information in the call and relayed to officers leaves a lot of reason for wanting more transparency regarding this stop. During the stop there was a physical altercation between the individual and the police resulting in the individual needing to seek medical attention. This incident had the elements that Elijah McClain suffered and screams “stopped while black” and potentially serious violations of rights. When local activists called about this incident inquiring about video the response they were given was concerning to say the least. They were told they could not have access because if the videos did not match the officers report of what happened it would not be in the public’s interest and KPD was nervous about the public perception. I have to ask myself why the video would not be the same as the officer’s report. They were also denied based on “only the victim has the right to these records”. It’s situations like these why open records prove vital in holding law enforcement accountable.
For those that don’t know, March 14th-20th, 2021 is Sunshine Week. “Sunshine Week was launched in 2005 by the American Society of News Editors – now News Leaders Association- and has grown into an enduring initiative to promote open records”.
Let’s CELEBRATE Sunshine Week with an Open Records Lawsuit!!!!!
Considering the fact that Sunshine Week is upon us and we have been consistently ignored we thought it fitting to file a lawsuit against the Kenosha Police Department. On March 17th, 2021, Never Stop Media LLC filed a Writ of Mandamus in the Kenosha County Courthouse. If an authority withholds a record or part of a record, or delays granting access to a record or part of a record after a written request for disclosure is made, the requester may bring an action for mandamus asking a court to order release of the record. Mandamus is the exclusive remedy provided by the legislature to enforce the public records law and obtain the remedies specified in Wis. Stat. 19.37. In a mandamus action, the court must decide whether the records custodian gave sufficiently specific reasons for denying an otherwise proper public records request. If the records custodian’s reasons for denying the request were sufficiently specific, the court must decide whether the records custodian’s reasons are based on a statutory or judicial exception or are sufficient to outweigh the strong public policy favoring disclosure. Ordinarily the court examines the record to which access is requested in camera. To obtain a writ of mandamus, the requester must establish four things: The requester has a clear right to the records sought; the authority has a plain legal duty to disclose the records; Substantial damage would result if the petition for mandamus was denied; the requester has no other adequate remedy at law.
In the Mandamus suit filed by Never Stop Media LLC, they are “seeking information regarding the operations of the Kenosha Police Department (“KPD”) as it concerns the actions of KPD Officers, their Supervisors, Commanding Officers, and the Chief of Police as well as a history of racially discriminatory conduct by the KPD”. The suit names the City of Kenosha Police Department, the Kenosha Chief of Police Daniel Miskinis and the Public Information Officer, Lieutenant Joseph Nosalik for failing to comply with state and federal laws pertaining to open records requests. It alleges that Never Stop Media has filed over the course of the last seven months, 13 open records requests with the City of Kenosha WI and haven’t received a single document.
NSM states they are “being blatantly ignored” and “being denied on other requests in order to conceal information the public has a right to know”.
The Attorney General of Wisconsin has opined that “ten working days generally is a reasonable time for responding to a simple request for a limited number of easily identifiable records.” “Requests for public records should be given a high priority”. A few of the more notable requests that were made include:
In September 2020 when Never Stop Media filed requests pertaining to the “mandatory curfew” they were told that no such documents existed, yet a “curfew” was enforced. Following the filing of the Federal Lawsuit in Kenosha on the grounds that the “curfew” was unconstitutional and discriminatory, like a magic trick from a Penn & Teller Show, documents in regards to the curfew were released. But why were there no documents available prior to the Federal Lawsuit? "That’s what we want to know along with thousands of others in the public". Along with curfew records, another request pertaining to the protests that happened in Kenosha was filed and there hasn’t been a single record released by the Kenosha Police Department pertaining to anything pertaining to the protests back in August 2020.
These records were denied based on needing to obtain permission from the Kenosha County District Attorney’s Office. Fact that a police investigation is open and has been referred to the district attorney’s office is not a public policy reason sufficient for the police department to deny access to its investigative report. One or more public policy reasons applicable to the circumstances of the case must be identified in order to deny access. Under open records law when a public records request is directed to a law enforcement agency the law enforcement agency instead must perform the usual public records analysis and may not deny the request.
For those who read the Never Stop Media article about the Automatic License Plate Readers (ALPR) and outlined in that article how secretive and dangerous ALPRs were, while Kenosha Police Department and the Common Council were trying to sneak in, NSM filed a request pertaining to those ALPRs and has still not received a single record pertaining to that either. With the writing of that article and the open records request, the ALPR Grant was denied and Chief Miskinis released a statement regarding privacy issues that Kenosha Police Department decided to not utilize ALPRs at this time.
Requests were sent pertaining to Detective Pablo Torres of the Kenosha Police Department for his personnel file. Torres is responsible for multiple excessive use of force complaints, inappropriate comments, and shooting two individuals in a 10 day period, killing one individual named Aaron Siler. Torres is also responsible for the arrests of two journalists during the protests which is a violation of the 1st Amendment. Records were originally given to Fox6 several years ago but have been ignored when Never Stop Media asked for them. There is a public interest in disciplinary actions taken against public officials and employees—especially those employed in law enforcement. The courts repeatedly have recognized the great importance of disclosing disciplinary records of public officials and employees when their conduct violates the law or significant work rules.
In September 2020, Never Stop Media released audio scanner from the Kenosha Police Department that highlighted various elements of discrimination and corruption surrounding militia vs. protestors and the elusive details surrounding Kyle Rittenhouse’s escape to Illinois. The Mandamus suit states “Evidence of official cover-up is a potent reason for disclosing records. Citizens have a very strong public interest in being informed about public officials who have been derelict in their duties”.
The Mandamus suit outlines 13 open records requests by Never Stop Media. NSM states that the “Kenosha County Sheriffs Department has also denied an open records request claiming it was “overly burdensome” along with the Wauwatosa Police Department and a mandamus filing is next for these government entities once they raise enough funds, for blatantly ignoring 3 different open records requests made over two months ago pertaining to protests that occurred and decade’s worth of discrimination not only to Wauwatosa residents but also within its own department”.
This is an ongoing story and we will continue to update.
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