After four requests, Gazette gets open records
JANESVILLE Jeff Kuglitsch had the documents in his office the whole time.
Still, Rock County’s corporation counsel maintains he followed Wisconsin’s open records law when he repeatedly denied the Gazette’s requests for documents related to the resignation of former Human Resources Director John Becker.
For two months and in four letters, the Gazette requested copies of complaints against Becker and documents generated by a subsequent investigation of Becker.
The second and third requests yielded correspondence between Becker and county officials as well as a copy of Becker’s personnel file. No documents mentioned any investigation, despite the fact that several sources told Gazette reporters that an investigation had occurred.
After the fourth request, Kuglitsch, whose job involves advising county officials on legal matters, sent the Gazette two documents acknowledging an investigation.
Kuglitsch maintains he followed the law.
The Gazette and an attorney for the Wisconsin Newspaper Association disagree.
“We have serious problems with how the county handled our requests, and we are convinced that the corporation counsel and possibly others conspired to skirt the open records law, if not violate it outright,” Gazette Editor Scott Angus said.
Attorney Robert Dreps of Madison works for the Wisconsin Newspaper Association and provided support to the Gazette as the attempt to get the documents dragged on.
A strong proponent of open records laws, Dreps was outraged when he learned the documents the Gazette wanted had been in Kuglitsch’s office the whole time.
“That’s semantics,” Dreps said. “The courts have made it clear. Open records law provisions aren’t determined by where you put the document or what you call it.”
Becker resigned Sept. 25. The Gazette on Sept. 28 sent its first written request for the documents.
The letter was addressed to Lori Pope, acting human resources director. The Gazette asked for copies of complaints filed since July 2008 against Becker and copies of reports generated by any investigations of him.
A copy was sent to Kuglitsch. On Oct. 1, he replied:
“After consultation with the human resources department and review of the file, I can state to you that for the period requested, we find that there were no written complaints or any other reports generated referencing a complaint against Mr. Becker.”
Meanwhile, Gazette reporters heard from sources and readers that an investigation had taken place.
The Gazette on Oct. 6 sent a second request to Pope, this time leaving out the word “complaints.”
“Specifically, The Gazette requests copies of documents generated by a 2009 investigation … ” the second letter reads.
Kuglitsch again was sent a copy of the letter.
This time, Pope responded and included a copy of an e-mail from Becker to Administrator Craig Knutson and Kuglitsch as well as Becker’s letter of resignation.
No mention was made of an investigation in either document, even though sources by then had told the Gazette that the county had hired former Corporation Counsel Tom Schroeder to conduct the investigation.
The Gazette decided to broaden its request. The third letter, dated Oct. 28 and addressed to Pope, states the Gazette knew that Schroeder had conducted an investigation.
That letter, a copy of which was sent to Kuglitsch, requested a copy of Becker’s personnel file as well as “copies of all records about Mr. Becker generated by county employees, Mr. Schroeder, or others” subject to open records laws.
Kuglitsch informed Becker of the Gazette’s request so that Becker could add documents to his files as the law allows. Becker did not do so.
On Nov. 12, Pope released Becker’s 73-page personnel file. It included performance reviews—all at or above expectations—and copies of continuing-education certificates.
It contained no mention of an investigation.
Finally, on Nov. 17, the Gazette addressed a fourth letter—nearly identical to the third—to Kuglitsch. The Gazette requested “copies of all records in your custody or the custody of any other county employee or department about Mr. Becker … ”
Kuglitsch again informed Becker of the request.
“As you can see, they are persistent,” Kuglitsch wrote about the Gazette.
Becker did not add any information to the file, and on Nov. 30, Kuglitsch released two documents that revealed the investigation: a contract hiring Schroeder to probe “the conduct and/or alleged misconduct of John Becker” and an invoice from Schroeder’s office.
When interviewed by the Gazette on Tuesday, Kuglitsch said he followed the letter and the spirit of the open records law when he didn’t release the investigative documents at the Gazette’s first request.
“I believe we followed the law appropriately under all your requests,” Kuglitsch said.
Knutson supported Kuglitsch’s legal decisions.
When asked, Kuglitsch said he didn’t release the documents in his files because the Gazette addressed its first three letters to Pope. The Gazette did send Kuglitsch copies of each letter.
“You wrote that you were filing a formal record request for documents that are in your (Pope’s) custody,” Kuglitsch told the Gazette. “We looked at that as you’re looking for human resources records. We gave you the entire human resources record. His entire personnel file is in your custody.”
That interpretation violates the open records law, according to the 2009 Wisconsin Attorney General’s Open Records Compliance Guide.
“It is the nature of the documents and not their location which determines their status under the public records statute,” the guide states.
Requestors are not responsible for knowing a file’s location, Dreps said.
“The records you were seeking existed within county offices,” Dreps said. “The open records law doesn’t require a requestor to guess in which county office the records are located. The county’s action shows bad faith and was in violation of the law because they say it was made to the wrong office.”
According to the attorney general’s 2009 compliance guide, something as simple as changing a name on a letter should not be the trigger that releases a public record.
“‘Magic words’ are not required,” the guide states. “A request which reasonably describes the information or record requested is sufficient.”
When asked if he disagrees with the attorney general, Kuglitsch said: “I believe we acted legally and appropriately with every response that we sent out of this office.”
After all this, Angus said he has his doubts that the county has released all the records that are on file about Becker. The process casts doubt on the county’s willingness to make records available to the media and the public, Angus said.
“The county clearly went out of its way to keep information from us and protect Mr. Becker, and frankly, we don’t understand why,” Angus said.
Knutson and Kuglitsch said the county was not trying to protect Becker.
“There hasn’t been an attempt to protect anyone other than the county itself,” Knutson said. “In terms of complying, it is the county’s policy to comply with the open records law fully. I think we’ve demonstrated that in the past and will in the future.
“If there’s disagreement with the interpretation in this case, I think we can get through that,” Knutson said.
The law doesn’t just apply only to newspaper requests. It is meant to ensure that the public has access to government documents, Angus said.
“These people are public employees controlling public information about another public employee who resigned under pressure,” he said. “What part of the public’s right to know don’t they understand?”
On the advice of Wisconsin Newspaper Association attorney Kendall Harrison, the Gazette did not request copies of e-mails regarding Becker’s resignation because filling requests for electronic documents can take considerable time.
The Gazette now plans to seek e-mails about Becker’s resignation and will continue to pursue other documents that could be relevant, Angus said.
“It’s partly about trying to get to the bottom of why a high-ranking county official resigned under pressure, and it’s partly about impressing upon county officials how important it is that they comply with the open records law,” Angus said.