Law firm sues DPI over public records denial

Posted at 2:40 p.m. on February 8, 2019

The Brillion News

MADISON – The Wisconsin Institute for Law & Liberty (WILL) filed a suit in Dane County Circuit Court on February 7, demanding records maintained by the state Department of Public Instruction.

WILL said the documents it seeks would shine light on whether DPI is illegally implementing the federal Every Student Succeeds Act (ESSA).

Upon receiving the complaint, Judge Richard Niess immediately ordered the DPI to “release the records” or appear before the Judge on February 26 at 2 p.m. in the Dane County Courthouse to explain why the state public schools agency cannot do so.

Since last August, DPI has refused to turn over these documents to WILL, even though they have been provided the same documents to school district superintendents under an embargo WILL considers to be illegal.

The Every Student Succeeds Act is the new federal law on K-12 education, replacing No Child Left Behind. ESSA gives states more power – in exchange for federal funds – to set education policy. To comply with ESSA, Wisconsin must implement its state plan, which includes creating a new accountability system and federal report card.

In Wisconsin, state agencies cannot implement policies without going through the regulatory process, which includes a legislative check. Agencies cannot promulgate regulations without having explicit authority from the state legislature. Two years ago, WILL warned the Department of Public Instruction and then-Superintendent Tony Evers that they cannot unilaterally implement portions of the ESSA state plan without additional laws.

Last August, WILL attorneys filed an open records request to ensure that DPI is not breaking state law by unilaterally implementing ESSA. WILL asked for communications between DPI and school districts regarding the Every Student Succeeds Act, among other documents. After repeated follow-ups by WILL, DPI responded on November 13, 2018 partially denying the request. WILL promptly amended its request by narrowing the search parameters. To this date, DPI has refused to comply with the request.

During that time, however, WILL learned that DPI sent preliminary reports to school district superintendents about ESSA, but required them to keep the documents from the public – and even their school boards.

These are the very documents that WILL has tried to obtain.

DPI could be applying a federal accountability system to schools and districts without having any state legal authority to do so. Just days ago, DPI sent superintendents the final “joint federal notification packets” on ESSA – subject to the same illegal embargo until March 5th.

State law establishes a “presumption of complete public access to government records” and gives the public the “right to inspect any record”, subject to exemptions that do not apply here. The Attorney General of Wisconsin has recommended that ten working days are a reasonable response time for an open records request. A 2017 report found that DPI’s average response time for a request was 8.9 business days. WILL’s original request was made over 5 months ago and it has been over 2 months since the request was narrowed.

“For months, DPI has illegally delayed turning over important records about ESSA. To make matters worse, they have no problem sharing these records with school district superintendents and instructing districts to keep them from the public. Their attempt to hide how they are implementing federal law without proper legal authority should give parents and taxpayers alike cause for concern.” said Tom Kamenick, Deputy Counsel and open government expert at WILL.​

“The Every Student Succeeds Act is a comprehensive federal law that imposes a number of requirements on states to make decisions on K-12 policy issues, and DPI has known for months that they lack authority to implement it,” said Libby Sobic, WILL Director of Education Policy. “Despite this, DPI has moved forward unilaterally and attempting to avoid the legislature and regulatory process.”

WILL asked for the records back in August of 2018. Three months passed before it got a reply – partially denying the request for public records.

The suit outlines a pattern of the DPI stonewalling WILL.

In the suit, Will said the information being withheld by DPI is of public interest. “The federal accountability system determines whether each Wisconsin school and district is deemed proficient. If a school or district does not meet those proficiency standards, the school and/ior district may be subject to DPI interventions,” the suit said.

It also seek punitive damages against the state agency for imposing an illegal embargo on the public records WILL requested.