Monday, September 29, 2014

Boss Abele Breaks FOIA Laws

Over the summer, during the hotly contested Milwaukee County Sheriff's primary, it was revealed that the incompetent incumbent, David Clarke, refused to release his calendar in an open records request filed by One Wisconsin Now.

Scot Ross, Executive Director of One Wisconsin Now, hit the nail on the head when he was quoted saying this:
“David Clarke owes Milwaukee County residents answers about how he spent his time,” said Scot Ross, executive director of One Wisconsin Now. Ross accused Clarke of being "AWOL" during one of the state's biggest tragedies.
He's right. The citizens of Milwaukee County have a right to know how their elected leaders are spending their time.

This is especially true as all the sordid details of Scott Walker's term as Milwaukee County Executive keeps coming out, showing how his staff spent a lot of their time doing campaign work.  Unsurprisingly, Walker also had issues with transparency - he didn't like it at all.

Which leads us to Chris "Boss" Abele.

Just like his buddies, Clarke and Walker, Abele has a problem following Freedom of Information Act laws.

On June 26, 2014, David Eisner, Contract Administrator for AFSCME District Council 48, sent the following FOIA request to Abele's office:
Subject: Open Records Request

County Executive Abele,

This letter is to request, under the state's Open Records Law,(Wisconsin State Statutes s.19.31-39) the following information:

1.) A listing of all public appearances currently scheduled by the Milwaukee County Executive between the date of compliance with this request and December 31, 2014

2.) The scheduled date and time of these events

3.) The location name, street address, and any room designation of the scheduled appearance

4.) The name of the sponsoring or host organization of the appearance

I agree in advance to pay actual, necessary and direct costs of producing these records up to $100.00.
Please advise me if the total cost will exceed that amount.

I understand that public records must be produced as soon as practicable and without delay per Wisconsin State Statute s.19.35(4)(a). Please advise me promptly of any delays in your response, and please let me know if I can clarify or refine this request.

If you are not the records custodian for this information, please notify me and forward this request to the appropriate person. Thank you for your assistance. A hard copy of this request has been mailed to you also.


David Eisner
Contract Administrator
AFSCME, District Council 48
On July 11, Abele's spokesman, Brendan Conway, replied that they received the request and that they would respond in a "timely fashion."

So AFSCME waited. And waited. And waited. And waited some more.

On August 8th, four weeks after Conway promised a timely response, Eisner sent another email to Conway, asking for a follow up to the FOIA request.

Still, there was no response.

On August 14th, Eisner followed up with Claire Zautke, Abele's Senior Executive Assistant.  She said that Conway was out of the office "for a while," and would follow up with Abele's Chief of Staff.

Still, there was no response.

Finally, on August 22nd, Eisner sent the following email directly to Boss Abele:
Good Afternoon County Executive Abele,

On June 29, 2014, pursuant to Wisconsin State Statutes s.19.31-39, and s.19.35(4)(a), District Council 48 made an Open Records Request to your Office, of which such request is outlined in the attached string of emails. Please review. On July 11, 2014, your Director of Communications Brendan Conway emailed me acknowledging the Union's request and indicating your office would respond in a timely manner. Subsequent to that email, I have further communicated with your staff regarding this request.

Please be advised, to date, the Union has not received the requested information from either yourself or your staff. It has been fifty-four (54) days since this request was originally submitted. 
This delay from your office is unreasonable, unacceptable, and in violation of Wisconsin State Statutes. I have included the parties legal counsel in on this email communication due to the non-compliance of State Statutes. On behalf of AFSCME, District Council 48, I am again asking you when we can expect compliance with this Open
Records Request? Please advise as soon as possible, and without further delay. Thank you for your immediate attention to this matter.


David Eisner
Contract Administrator
AFSCME, District Council 48
That was finally enough to light a firecracker under Conway and got him to finally respond, nearly two months after the initial request. Unfortunately, Conway's response was less than acceptable:
Mr. Eisner,

Thank you for your patience, I had hoped to respond sooner but my newborn daughter had other ideas and I was on paternity leave the past few weeks.

Per your request, County Executive Abele's future schedule is constantly in flux. The scheduling document he works from is never more than a draft, subject to revision at any time. Corporation Counsel has advised us that a draft document prepared by or for an official is not a record subject to release.

Have a good day,

AFSCME consulted with their attorney, Mark Sweet, who also found Abele's position to be untenable.

AFSCME also contacted Bill Lueders, President of the Wisconsin Freedom of Information Council, and asked him about Abele's position. Lueders said that Abele's response was "outrageous" and directed AFSCME to one of their webpages which discusses such issues, citing court decisions and pertinent laws. And yes, such claims as Abele's, that documents are drafts and not subject to FOIA requests is covered:
2. Draft status. The Open Records Law contains an exemption for drafts, which it defines as records “prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working.” Despite the clarity of this language, and case law (Fox v. Bock) and an AG opinion (77 Atty. Gen. 100) affirming it, custodians sometimes claim that draft status extends to any form of a document short of the final version they deem fit for release.

Best practice: Once a document is shown to anyone besides the originator or a person working on his or her behalf, it is no longer a draft. Records custodians should also release early versions of documents, to show how they were changed as the result of review, reconsideration or outside pressure.
Clearly, Abele is in the wrong and is in violation of the Freedom of Information Act, despite what he claims his corporation counsel says.

Now, it just might be that Boss Abele is reluctant to follow the law because he doesn't want people to know how much time he's spending at the University Club with Julia Taylor, Sheldon Lubar, Michael Grebe and Joe Sanfelippo, plotting out the demise of Milwaukee County.

More likely, he just doesn't want the citizens of Milwaukee County to know where he is because they might show up and hold him accountable for his multitude of failings.

As with his failure to deliver the county budget on time, Abele needs to stop playing these games with open records requests and do his job!

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