Presentation B-2 Part 2 The reality: How the policies on open records and bullying were really implemented.
#2 THE FIV IVE OPEN RECORD REQUESTS FROM JUNE, JULY 2013 The next slides focus on five written open record requests that had been made by Attorney Osinga in 2013 and which focused largely on potential records relating to student bullying.
Ertl: Not many open record requests are made to the dis istrict Question: “How often do you rely on legal counsel to respond to open records requests?” Answer: “I don’t know. I couldn’t tell you how often. We don’t have a lot of open record requests….”
June and July ly 2 2013: Summary ry of the contents of the 5 5 open record requests • 1. June 18, 2013 The first public record request was for bullying records compiled under district bullying policy. These were a set of detailed requests for records regarding particular bullying incidents or behavior or the reporting involving such incidents in 2010 and after • 2. June 26, 2013 After the district responded to the June 18 request it was modified to narrow the request and set an order of priority in responding • 3. July 1, 2013 This was a simple request for a copy of an earlier version of the district bullying policy. The letter referred back to a previous open records request #2. • 4. July 10, 2013 Submitted public record requests for additional detailed records pertaining to bullying reports • 5. July 22, 2013 After the district response the July 10 request was modified again and was directed at records relating to teacher bullying
2014 open record requests --- --- ANONYMITY: A change in in approach for requesting public records from the school dis istrict • On May 22, 2014 Attorney Osinga began making anonymous open record requests through a local law firm. Anonymous requests are specifically allowed in the open records statute. • From past experience as a criminal prosecutor Attorney Osinga had a professional hunch that the district’s answers might well be different if the public records custodian did not know it was him making the requests. Using anonymity in this fashion is similar, for example, to having an undercover officer make a drug purchase as part of an investigation. Anonymous requests allow a record custodian the precise opportunity to act in the same way he or she would act if the requester was a member of the general public. • The first response in May 2014: what provided and what not provided. Not even one of the five open record requests from 2013 were included in the response to the May 22, 2014 request. • Additional public record requests were then made over the next year consisting of requests for various documents with district responses to those requests
May 22, , 2014: The fir irst anonymous record request The attorney’s letter states: “This office represents an entity that has an interest in publishing a series of articles related to Wisconsin school district operations and administrative and employment related practices since the passage and implementation of Act 10 ….” “I am only requesting a copy of any actual, written Open Records request(s) made to your district (since May 15, 2013)
The subject of making anonymous requests was apparently the source of some consternation the school district’s central office. Attorney Osinga ultimately chose not to remain as an anonymous record requester. When Attorney Osinga was deposed under oath he was asked repeatedly why he made the open record requests in 2014 and 2015 in an anonymous fashion using a law firm to submit the requests. This excerpt from the deposition provides an explanation of the rationale for the anonymous requests. Question: “………..why didn’t you want the district to know that you were requesting these documents? Answer: “I had say a hunch, a professional hunch that the response that I would get from the district might be as what I (later) experienced with the district…” Answer: “…..We drew attention to the records not provided but didn’t specifically state in that fashion that you just described the exact records and the date that they had been generated in 2013.” Question: “ Why not ask the district for your personal five public record requests prior to filing the petition?” Answer: “The reason being it was my perception that the district was not responding in a forthright manner to both this request and the subsequent ones where we drew attention back to these …. five requests.”
Not wanting to drop the issue of why anonymous requests were used the school district’s attorney later comes back to the issue. He attempts to connect it to the fact that his wife, Lyda Osinga, had filed an age discrimination complaint related to the district’s salary level assignment process. Question: Can you explain to me why you didn’t want the district to know it was you making public records requests? Answer: “…….what had been evident to me was that the district was not following its own policies. In this instance it was in regards to decisions about the placement and salary categories and that kind of thing, and that led me to essentially be concerned, as I said, that if they were aware that I was making the open records requests, the response would be different….” Question: “And why did you believe that the response would be different? What caused that belief? Answer: “I wouldn’t call it a belief. I think I earlier testified kind of a hunch or maybe a suspicion and it could have---you know, it could have panned out that they would have given us all of the twelve requests. They provided us with seven ….. so my hunch was sort of found to be well- founded, I guess.”
This is an excerpt from Superintendent Ertl’s testimony at his October 18, 2015 deposition. Likely without realizing it he actually confirms Attorney Osinga’s personal hunch that it was necessary to make anonymous requests: “….why would we conceal something that we know he already has? To deny giving him access to something he already has, that makes no sense.” Attorney Osinga’s hunch was, in fact, based on the inverse proposition, i.e., would the district provide access to records that the district didn’t know that he had due to the fact that the requests were made anonymously? As reflected in the circuit court’s ultimate finding and order the answer was: “NO”. It is not unreasonable to recognize that denying access can make eminent sense if the records reflected some troubling information that could be embarrassing to district administrators.
July 1 , 2013 request This was the third of five requests made back in 2013. The district provided a copy of this in response to a later records request but the first, second, fourth and fifth open record requests and responses were strangely omitted in response to the May 22, 2014 record request.
A la later request – the wordin ing now focuses on student bull llying is issues whic ich again were the prim imary ry subje ject matter of f the fi five record requests in in J June & July ly, , 2013 2013 This request was intended to give the Wauwatosa school district a second opportunity to provide the 5 requests from 2013 all of which had referenced the problem of bullying.
An April 20, , 2015 open records request This request made several record requests but included the invitation to “supplement those records that were previously furnished” This was an additional attempt to provide documents like copies of the 4 remaining record requests that had been made in June and July of 2013 but had not been previously furnished.
The district’s Response to the 4-20-15 Open Records request Again no reference in this response to the 4 record requests from 2013 not previously disclosed.
#3 Attorney Kraig in investigative report The district hired Waukesha Attorney Lindsay Kraig to do a comprehensive review of the issues surrounding student bullying at Washington Elementary. By the end of the summer she filed a report on her findings.
Court found a vio iolation The failure to furnish a copy the Kraig report was found by the court to be a violation of the Open Records Law.
News Artic icle About Bull llying & Meetings Wit ith Parents 2013 was a busy year regarding bullying issues. District administrators were faced with multiple issues regarding bullying. The article to the right reflects one instance where they were actively dealing with the concerns of parents regarding student on student bullying Washington Elementary School
This is the August 29, 2013 letter from Attorney Kraig to Superintendent Ertl summarizing her investigation. As part of the process Attorney Kraig spoke with Superintendent Ertl and School Board president Michael Meier and received copies of e-mails that they had received from parents.
This is testimony from Superintendent Ertl confirming the amount of money spent on attorney fees for the investigation by Attorney Kraig.
Attorney Kraig states: …School staff did confirm that, during the 2012 - 2013 school year, certain students were subjected to inappropriate conduct (e.g. name- calling, threatening language, swear words, invasion of space, and unwelcome physical conduct, such as pushing, hitting, kicking, and shoving) by second and third grade students while at school, and have been negatively affected (physically and/or emotionally) as a result.
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