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Costs bar records to requester who prevailed in open record case

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Costs bar records to requester who prevailed in open record case

  • Affirmative action records are still not available to a professor who won his case for access to them before the state’s high court but who now must come up with $44,000 to cover costs.

Nov. 18, 2003 — More than a year after the Supreme Court of Wisconsin awarded a freedom of information act victory to a professor seeking school affirmative action records, he is still without the records he sought, and he has been told he must pay $44,000 before the University of Wisconsin will provide them.

In addition, governmental attorneys are reading a note in that decision as permission to pass on new costs to a requester.

J. Marshall Osborn, math professor emeritus, won his lawsuit against the University of Wisconsin Board of Regents in July 2002 for five years of data from all applicant records on test scores, grade point averages, race, gender and ethnicity to determine what factors the school favored in its admissions. The board had claimed that the information was protected by the Federal Educational Rights and Privacy Act even though the information he sought did not name individual students.

However, the Wisconsin Newspaper Association reported last week in its Bulletin that Osborn cannot have the information until he pays the huge fees for its reproduction.

In the Osborn decision, the high court rejected the University’s argument that providing the data would be too burdensome, but noted that the school was not required to bear the cost of producing the records. It could charge Osborn “actual, necessary and direct” costs for location, reproduction and photographic processing of the records.

State assistant attorney general Alan Lee, who argued the Osborn case, told The Bulletin that in the past agencies had only charge for copying records and for complicated searches for information but that now there is “at least” an “open question” that agencies can also charge for redacting information.

In early November, Milwaukee city attorney Melanie Swank in a Wisconsin Bar seminar on open records ventured that still other costs may be borne by requesters in the future. For instance, a new privacy provision in the open records law requires that agencies must notify some people before records concerning them are provided. That cost, even when the a private firm is hired to make the notifications, could be passed on to requesters, she suggested.

Osborn’s attorney, Daniel Kelly, said the arguments that Osborn’s case stands for higher costs to requesters are contrived. The case had nothing to do with fees. The court did not have briefs or hear arguments on costs and costs were not an issue in the case, he said.

Kelly said that most of the high estimate comes from the university’s law school, which has not yet computerized four of the last five years of data and estimates that it would cost $37,000 to provide the paper records with names and personal identifiers redacted. Data fields identifying particular students can be easily redacted from the admissions data maintained by other departments.

The Washington, D.C.,-based Center for Equal Opportunity was a party to the lawsuit along with Osborn.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case before the state’s high court, arguing that regardless of whether affirmative action policies were used for or against any groups, the records are important to the public so that it can evaluate the school’s admission policies.

(Osborn v. University of Wisconsin; Requester’s attorney: Daniel Kelly, Milwaukee) RD

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