Public Records Requests as Pre-Litigation Actions

Wisconsinites submitting public records requests under the law (Wis. Stat. §§ 19.31 et seq.) may do so for any number of reasons (and need not declare a motivation of any sort). Not everyone will have the same aims in mind.

For someone who’s a publisher (newspaper, magazine, blogger), however, a sensible way to look at a public records request is as a pre-litigation action. While no prudent publisher should court litigation, or threaten legal action without significant reflection, publishers would do well to understand that all public records requests are actions under the law. They’re not mere casual requests, side conversations, unsupported hopes, or even plaintive entreaties for information.

They are requests submitted in reliance on Wisconsin law. If they are not fulfilled as they should be, then public officials have disregarded the law. (One should say that as they should be is a matter of interpreting the law; here one is describing a sound, good faith interpretation.)

There can be no right without a remedy (ubi jus ibi remedium); a right without a remedy – that is an unenforceable claim for or against something or someone – would be nothing but a wish.

When requesters ask for something to which they are entitled under the law and don’t receive it, their rights have been violated. To do nothing is to allow officials to act outside the law, and in disregard of it.

These are matters to be approached carefully and deliberately. I’ve outlined some thoughts for bloggers on this. See Steps for Blogging on a Policy or Proposal. That post was written as an affirmation the need to be cautious and methodical. Threats, flamboyant claims, etc., have no place in this.

In my own case, I have never had to follow a public records request under the law to the next, rational step in escalation. And yet, and yet, I have never submitted a public records request without considering and committing beforehand to the prospect of a next-step, legal response. This not a matter of threats; it’s a sober and prudent consideration of one’s rights.

How very sad, then, that some other publishers – established newspapers – allow their public records requests to go ignored or fulfilled inadequately. These newspapers value their rights too cheaply, so cheaply that they’ll endure their own diminution. If this reticence involved themselves alone, then it would be bad enough; that their diffidence only encourages government’s disregard of others’ rights is a greater concern.

When rural publishers look at how small they’ve become, they might take a moment to consider their own unwillingness to vindicate their rights.

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