The price of access: An impact analysis of harms associated with disclosure under the Wisconsin Open Records Law

This research examines the impact of disclosure of public records under the Wisconsin Open Records Law. In cases where records are not explicitly exempted by law, Wisconsin records custodians use a common law balancing test to determine whether records are to be released. This test weighs the benefit to the public interest brought by disclosure against the harm to the public interest brought by disclosure. If the former outweighs the latter, the records are released. This study examined the impact of release by following up on harms argued as justifications for nondisclosure in Wisconsin appellate open records cases decided in favor of disclosure between 1988 and 1998. In doing so, this research draws from the theory and methods used in impact analysis of law. In each appellate case studied, the asserted harms were examined and such qualitative methods as in-depth interviews and documentary data examination were used to discover whether these harms were realized after the records were released. The asserted harms fell into five groupings: damage to reputation, hindrance of public employment goals, hindrance of law enforcement, damage to prison security, and miscellaneous. The research failed to find realization of any of the harms predicted by records custodians. These findings provide insight into the effect of records disclosure for the public, a basis for legislative debate on the law, grounding for judicial and custodian applications of the balancing test, and proper foundation for media and other advocacy groups to argue in favor of openness. The study also contributes to development of the literature on access and groundwork for future impact analysis of statutes and common law.