I recieved a letter from the Milwaukee City Election Commission informing me that my open records request will not be fulfilled for either of 2 reasons. The first reason is it is the opinion of the Election Commission that releasing public records which may be referenced during a criminal investigation may compromise that investigation. The risk
of such compromise outweighs the public's right to know. I can now begin my appeals process if I wish.
The second reason is that the City Elections Commission is no longer in posession of the records. I found this out when I spoke to Melanie Swank on April 13, 2004. She stated the records had been siezed from the City Election commission about 2 weeks prior. Still, it took 4 more weeks after the siezure for the letter of denial to appear in my mail box.
Swank was unsure if the possession of records was transfered to the Milwaukee County DA, the federal prosecutor or was jointly held by both offices. In order to find out, on April 18, 2005, I sent an open records request to the Milwaukee county DA for 32 pieces of paper (4 7.51 related canvass records for 8 wards). I have now ruled out Milwauke DA possession. James Martin called me to inform me that my request was still pending, but that he (the records officer
) needed permission to release copies of the records. If the DA's office had sole possession, the answer would have been yes or no, but the request would be aswered. Seeking permission eliminates this possibility. There records are in the sole custody of the federal prosecutor or in joint custody between the DA and the federal prosecutor.
I discuss why this a good thing out on the Boots and Sabers thread
on this topic.
My first point is that this balancing test is a crock of sh*t. If the risk to the investigation were so great, the records officer of the Milwaukee District Attorney's office would have dismissed my April 18, 2005 request out of hand. Jame Martin would not have contacted me twice since then to inform me the request still being processed and to assure me the request was not being ignored. I would think the District Attorneys office doing
the investigation would be the one required to balance the risk to an on-going investigation. It is not the duty of the agency being investigated
to balance any risk to that investigation. The investigated will always
tend away from embarassing disclosure. That is why 19.31
was enacted; to force disclosure when a public official or agency would rather not disclose. This fig leaf needs to be chanllenged so it cannot be used in the future.
The second point is that the records the feds siezed were not only the City's records. The Milwaukee City Election Commission was supposed to turn over to the County Elections Commission one of the poll lists, one of the inspector's report and one of the the machine tape reports for each of the 314 wards. This was not done. This violation of the canvassing statutes was discovered by accident during the March 23, 2005 session of the Senate Special Committe on Election Law Review
. Listen beginning at 1 hour and 20 minutes (1:20) into the afternoon session
of March 23, 2005. It was discovered Milwaukee City had physical custody of Milwuakee County's set of election records at the time the federal/state investigation began in mid-January (2.5 months late). Between the start of the investigation until March 23, 2005, Janice Dunn of the Milwaukee county election commsision stated she stopped asking for her (the county's) set of records (4.5 months late). Kevin Kennedy points out that this is why there are 2 sets of records made, so the counties can get their set by 2:00 pm the next day (November 3, 2004). Janice Dunn failed to ask for the county's set of records betwenn March 23, 2005 and the siezure of the county's records from the Milwaukee City Elections Commission on or about April 1, 2005 (5 months late).
All the things I want to look at should also be available at the county election office. Because of the election law violations under 7.60 committed by the Milwaukee County Election Commssion, I cannot get access to the set of records created on election night which were intended for the county. I wonder now if 2 sets were even made of anything other than the poll lists.