Tosa Police Use High Fees to Combat Open Records?

The investigation into the second fatal shooting involving Wauwatosa police officer Joseph Mensah was over, and people had filed open records requests for Mensah’s personnel file. Then, two days after the shooting was cleared by the District Attorney’s office, John Milotzky would send out a telling email.

“I spoke with Attny. [Jonathan] Cermele about it,” Milotzky, a Wauwatosa detective and president of the Wauwatosa Peace Officers Association (WPOA) emailed to a now retired captain in December 2016. “He said that trying to fight the release of the personnel file would be a waste of time/money and it’s rarely successful,” Milotsky continued. “He said many departments combat the issue by charging a high price to fill those requests, so maybe that’s something to look at in the future.”

The police union president’s email is just one page in over 1,600 pages of internal emails obtained through open records requests. Lawyers Kimberley Motley and Deja Vishny filed the requests as part of their investigation into the department and Mensah’s three fatal shootings.

“I’m grateful for the fact that the public has access to the information about what’s really happening with the Wauwatosa Police Department,” Vishny told Wisconsin Examiner. “Transparency in policing is extremely important. Police must be held accountable to the public. They are public servants, they are paid by the taxpayers and the public has a right to know if the department is being appropriately managed.”

Over the summer, as protests calling for police reform began to focus on Wauwatosa, Motley and Vishny filed a slew of records requests. Many focused on policies and procedures, while others sought to shed light on the outcome of investigations into blackface parties held by WPD officers and supervisors in the late 1980s.

WPD gave the lawyers a $5,400 bill to fulfill the request, which the department said would need to be paid before a search for the records would begin. Motley saw this as a deliberate effort to slow their investigation. At the same time, Wisconsin Examiner was told the outlet would be billed $400 before a search for emails in Chief Barry Weber’s inbox could begin. In the Examiner’s  case, WPD claimed that only the chief could review his own emails, and based the fee on Weber’s hourly pay rate.

Both Bill Lueders, president of the Wisconsin Freedom of Information Council, and Tom Kamenick, founder and president of the Wisconsin Transparency Project, were contacted by Wisconsin Examiner to get their perspective on the high fees quoted by WPD over the summer. Lueders and Kamenick also examined Miltozky’s email from 2016.

“This is truly the most shocking admission of bad faith that I have ever seen from a records custodian,” Lueders told the Wisconsin Examiner. “It is an open admission of the Wauwatosa Police Department’s intent to frustrate, with the goal of denying, a legitimate request for records that are indisputable in the public interest. I believe Detective Milotzky should be disciplined, and have no role in the handling of future records requests. I also think the department as a whole should apologize.”

“Government transparency advocates have long suspected that custodians intentionally pad their fees in order to discourage requesters,” Kamenick noted. “I’m not surprised to find out our suspicions were correct, but I am surprised and disheartened that, if the email’s author is to be believed, municipal attorneys are encouraging custodians to engage in this blatantly unlawful practice.”

Open records law in Wisconsin is supposed to protect against unnecessary fees. “Wisconsin open records law expressly forbids charging high fees in excess of the ‘actual, necessary and direct costs of making copies,’” Lueders notes. “To say, ‘many departments combat the issue by charging high prices to fill those requests,’ is an admission of desire to violate the law. Certainly we should expect better from those who are sworn to serve and protect.”

Kamenick echoed the point: “Custodians can only charge for the actual cost of locating a record. Inflating location costs to discourage requesters violates both the spirit and the letter of the Open Records Law.”

“No wonder we received the $5,400 bill for our open records that we were requesting from the Wauwatosa Police Department,” Motley told Wisconsin Examiner after reviewing the email. “It completely makes sense that that’s exactly what they were doing to these families when we paid the $1,320 just to get these emails. This was by design, this was a tactic they were using to get us to backtrack and say, ‘Well, we don’t need these emails because the price is too high.’” Motley asserts, “It’s very disappointing. Frankly it’s illegal, you can’t just arbitrarily charge high [open records] fees just because you’re irritated with the open records request that is being presented before you.”

Vishny said that the tactic would especially affect people who don’t have funds or resources to break through WPD’s paywall. “Most people who are the victims of police misconduct don’t have any money,” said Vishny. “High fees will discourage people from obtaining the truth. It’s in the public interest to let people know what’s going on inside policing. That’s why there’s a fee waiver that one can ask for when it comes to open records. And if the police are trying to get around the law by charging high fees, that’s something that’s being done in bad faith.” This single email, however, opens the door to other questions.

“It seems that for quite a while they weren’t charging high fees,” notes Vishny. “They had a discussion about that as a tactic. Of course, we don’t know what they’ve discussed that’s not in writing. We are trying to get more emails from them, we have put in a subsequent open records request. This request stopped at the time of the Alvin Cole shooting.”

Motley and Vishny have filed new requests for even more recent emails from WPD. “So we’ll see what further open records requests bring when we get a fresh set of emails that we are legally entitled to,” said Vishny.

Kamenick says that this situation is, “yet another reason [why] we should not have to pay so-called ‘location fees.’” He emphasizes that “the people searching for records are already paid a salary or wage by taxpayers, and charging a requester again for their time is just a way to profit from record requests.”

Wisconsin Examiner reached out to Milotzky, who forwarded any questions regarding policy and procedure to a WPD Captain. The captain has not yet responded to a request for comment, nor has Attorney Cermele, the WPOA’s lawyer. Cermele also represented Mensah when he was suspended in July, as well as in an unrelated Milwaukee County civil case.

Reprinted with permission of Wisconsin Examiner.