This week is Sunshine Week, an important seven days celebrated by journalists who work hard to shine light on government workings and records. Though the following report was bumped from our March 18 News&Guide edition to make space for important coverage of the coronavirus, the pandemic is a good reminder of the critical relationship between the government and its public. Maintaining open communication between the two — with the press representing the public in many cases — is as vital as its ever been. As such, we felt it was important to still publish this story during Sunshine Week, if only online. —Eds.
In early January, journalists from across the state sent out public records requests to agencies we don't often report on. The goal: to obtain emails between county sheriffs and county commissioners.
The result wasn't exciting, which in itself is exciting. It shows the state's public record's system — or at least part of it — works.
The first-of-its-kind project was launched to shed light on government transparency and examine some recent changes to the state's Public Records Act, resulting in sunshine related stories running in news outlets all over the state this week, officially recognized by the press as Sunshine Week.
Prior to the pandemic, however, the legislature and Gov. Mark Gordon tweaked the state’s sunshine law, known as the Public Records Act and is a collection of statutes that guarantee public access to government records at any level. Some of those changes include new deadlines for officials to fulfill requests and designated point people to make the process more accessible.
“It is actually an excellent change,” Teton County Chief Civil Attorney Keith Gingery said. “Before maybe someone sort of knew where they wanted to find a document but then you might get the runaround. Now with the new law you can pull up the website and it tells you who the designated person is for that agency. It just flows so much nicer."
The law also allocated funds for a state ombudsman, hired by the governor, to act as a mediator if there are disagreements between a government agency and the person making the request.
“The Public Records Act generally provides that all public records shall be open for inspection except those specifically identified as privileged or confidential under the act,” Gingery wrote in the Wyoming State Bar publication Wyoming Lawyer. “A custodian of public records may respond that good cause exists that prevents the release of a public record within the statutory time periods or may deny inspection for good cause if disclosure would be contrary to public interest or if the record is privileged or confidential by law.”
Under the new legislation the person requesting the records can file a complaint with the ombudsman Ruth Van Mark or they can go directly to district court to let a judge decide if there is good cause.
"I'm a mediator," Van Mark told Wyoming Public Media's Bob Beck in an interview for this project. "That's the role that the legislature laid out for me. They gave me essentially three defined responsibilities and the most important being the mediator between the requester and the governmental entity."
The 2019 legislation doesn’t address whether or not Van Mark has enforcement powers. Historically, only a district court judge can compel production of records.
“The public records ombudsman may mediate disputes between the governmental entity and the applicant for public records, prescribe timelines for release of records and waive any fees charged by a governmental entity,” Gingery wrote in Wyoming Lawyer. “However, such authorities appear to be part of the mediation services provided by the ombudsman and do not appear to be enforceable in any manner.”
Our records request for this project, which was organized by the Wyoming Chapter of the Society of Professional Journalists and created a collaboration among nine outlets statewide, asked journalists to file a request in a county they don't report on or don't often report on.
The request — all emails sent between the sheriff's office and county commissioners between Jan. 27 and 31 — was intentionally contained. The objective was not to file requests that garnered a lot of documents or burdened the record keepers.
"The purpose of this project wasn’t necessarily to closely examine the content of what was requested, though it’s common practice for journalists to occasionally check in on official correspondence for that reason," read a statement from the Wyoming chapter of the Society of Professional Journalists. "And while we strongly believe in the public’s right to access such materials, we did not want to create undue labor for a records request that was not targeted to any specific news story."
Reporter CJ Baker, of the Powell Tribune, took on Teton County. According to his notes, the process was swift.
A request was submitted at 2:24 p.m. Feb. 7. Eleven minutes later, Teton County Clerk Sherry Daigle responded and forwarded the request to the sheriff and county commissioners.
Daigle asked officials to respond to her within seven business days so the records could undergo a legal review, a common part of the process.
While the seven day deadline is new, if a public record that’s requested is in the custody and control of that government agency and it’s readily available it is supposed to be released immediately, Gingery said.
If they have to go searching archives for a record, Gingery said, they’re to notify the requester within seven days of their inquiry that they’re trying to obtain it.
“All public records shall be released not later than 30 calendar days from “the date of acknowledged receipt of the request” unless good cause exists preventing release within that time period.
It took only three days for the county to fulfill Baker's request. There were no emails to provide.
Gingery says in Teton County they work hard to beat the deadline requirements.
“If we can’t find it within seven days it means it’s in archives or there is some other weird problem,” he said.
The Teton County Attorney's Office also followed up with additional information, Baker said.
“We had each of the people you named look through their emails and we also had Dustin Richards the IT manager for the Teton County Sheriff’s Office look through all the communications during the requested time frame,” Gingery told the Tribune in a Feb. 12 email. “No email communications were found between Sheriff Matt Carr and any of the individual Teton County commissioners or the commission as a whole during the time period you requested.”
Gingery also followed up with a phone call to provide additional information, Baker said, offering “that the sheriff and commissioners had spoken in person at a public meeting held during the time period in question.
“If the Tribune was interested in that discussion Gingery noted that a video recording of the meeting was available on the county’s website,” he said.
New law, more records requests
When the law went into effect, a resolution was passed in Teton County to appoint Teton County Clerk Sherry Daigle as the public records person.
Daigle said it has resulted in more work on her desk, but also said the appointment has streamlined the process.
“Teton County has grown immensely so there are various county organizations that keep their own records but the public doesn’t know that,” Daigle said. “If someone is looking for a record from the library now I am the point person for the library so people will email me the request and then I have to loop the library people in.”
Daigle said she used to get a request every “six months or so” and now she averages one per week.
“It picked up when the law passed. It made it more public,” she said. “It doesn’t impact what I do on a daily basis … but it has added to my responsibilities.”
Daigle said Teton County gets all types of requests, some of which are easy to fill and others that are misguided.
“It’s election time so we get requests for the voting history of candidates,” she said. “We can tell you what elections they voted in but not how they voted.”
Other popular requests are marriage records (those are only available if you’re the bride or groom) and divorce records (those are at the courthouse).
A more frivolous request is land use titles, she said.
“We are not bonded or insured to do that research,” Daigle said. “Title companies tend to frown on us doing their jobs for them … if we were to miss a deed or an easement we can’t be held liable for that.”
Daigle often reminds people they are welcome to physically come to the Teton County clerk’s office and look through records (though as of Friday, people interested in accessing county buildings and records are being asked to schedule an appointment due to concerns over the spread of the coronavirus). Or if they’re looking for court records Daigle point them to the courthouse.
New technology challenges
Teton County has tried to keep up with the modern ways its employees communicate with each other because their emails and text messages are public record and subject to inspection.
But in the age of text messages, Slack and other messaging applications Gingery admits Teton County has fallen behind.
“The hard ones for us is emails,” he said. “Technology, as it changes, government is not always as quick to adapt as private businesses are.”
This Sunshine Week project sought emails partly for that reason, as well as an educational tool for the public — a reminder that this form of communication is subject to request.
Text messages are even harder to keep track of and produce when requested, Gingery said. Though texts are often used by government officials as a more direct way of communicating — and government officials’ text messages are subject to records requests, whether they’re using work or personal cell phones — the county doesn't have a formal way to “capture” them.
Teton County is “trying to find companies” to help it keep text messages but for now they work on the honor system, Gingery said.
“If I ask [a government employee] for all text messages on a subject [the employee] needs to send those to me,” Gingery said. “It is the same as deleting an email. But if they fell off the system because it’s been two years, I get that.”
He also advises employees to keep in mind their correspondence isn’t private.
“We spend a lot of time with our employees saying, ‘Please don’t put silly stuff in your emails. Write them like it is being read in the newspaper and try to keep them organized,’” Gingery said.
Public officials can be fined up to $750 for violating the Wyoming Public Records Act. But as part of the new law only the county prosecutor can bring the action, as opposed to the Wyoming Attorney General who used to retain that power.
How reporters use public records
Not every public record you read about in the News&Guide was obtained by a formal records request.
Reporters are more likely to ask a local government agency for records before resorting to a formal records request.
In the Feb. 26 article “Ex-cop had history of alleged violence, gets probation,” for example, police reports obtained through government sources and court documents found by searching in Teton County District Court files, verified that law enforcement had been called to the defendant’s house several times before his eventual arrest.
A formal records request would have likely turned up the same emails and police reports used in the stories but working directly with sources turned them over faster and didn’t involve several parties scouring every email and report that ever involved the defendant.
However, federal agencies — Grand Teton National Park, Immigration and Customs Enforcement and the U.S. Forest Service, for example — require formal requests through the Freedom of Information Act.
Not all such requests are successful.
The News&Guide submitted a FOIA request to U.S. Immigration and Customs Enforcement on April 18, 2019 seeking information about how many Teton County residents had been arrested by ICE since Jan. 1, 2016. The request also asked for a break down of the allegations and charges against those people.
On May 10, 2019 an email from “ICE FOIA” said the request was “too broad in scope.”
“The FOIA does not require an agency to create new records, answer questions posed by requesters, or attempt to interpret a request that does not identify specific records,” the email stated.
The request was again acknowledged on June 6, 2019 and eventually a physical envelope showed up at the Jackson Hole News&Guide with virtually no information inside.
Other times, federal agencies will take months processing requests. On July 9, 2019, the News&Guide filed a Freedom of Information Act Request for documentation related to the proposed paving of Meadow Road, and any related correspondence from David Vela, Grand Teton Park's superintendent at the time.
"This request was born from a member of the public’s concern about improper outside influence in National Park Service decision-making, and I would like for it to be considered for expedited processing," reporter Mike Koshmrl wrote the park at the time.
Vela is now the defacto director of the National Park Service, though his formal title is deputy director exercising the authority of director for the National Park Service.
The News&Guide's request, meanwhile, remains unfulfilled 8 months later.
Other federal requests have been filled, however, providing the public with insight into government workings.
In November 2019 the News&Guide filed a request with the U.S. Forest Service for the full investigative report on the Roosevelt Fire, which destroyed 55 homes in Hoback Ranches.
The request was fulfilled Jan. 7, with a 195-page partially redacted report and a response letter, resulting in a comprehensive story about the start of the fire, the interviews conducted to try and find the suspect who started it and the fire fighting response to the blaze.
News&Guide journalists crafted several stories in 2019 based on records obtained via records acts — a 34-page Wyoming Game and Fish investigative report into a fatal grizzly bear attack, a ranger’s report on a hunter who illegally shot a wolf in Grand Teton National Park, a 119-page report by the Wyoming Department of Workforce Services on the suffocation deaths of two men in a 12-foot-deep trench, the investigative report on a $5,000 rescue for three skiers who ducked a boundary rope at Jackson Hole Mountain Resort during an emergency closure, memos and emails over a money fight between Teton County and former prosecutor Steve Weichman and so on.
Requests from local agencies
Though the responses are generally faster, local records requests can also run into issues.
In May 2019 the News&Guide obtained the number of sexual assault and sexual battery reports from the Jackson Police Department and the Teton County Sheriff’s Office.
To be able to compare arrests to convictions the News&Guide asked the Teton County Prosecutor’s Office for the sexual battery and sexual assault cases from the same timeframe that were dismissed, amended to a lower charge, taken to prosecution or resolved by plea deal.
The next day Prosecutor Erin Weisman responded saying “the accumulation of data and creation of these reports would be burdensome and would cause unnecessary interference with the regular discharge of the duties of my office.”
After negotiating, Weisman provided details on the last three sexual battery cases in Teton County.
First Amendment attorneys, such as Cheyenne-based Bruce Moats, have taken challenges to the courts.
In 2019 the Wyoming Supreme Court overturned a Teton County District Court ruling about access to Jackson Hole Airport records. The airport, which is leased from Grand Teton National Park and administered by a town and county-appointed board, tried to reserve the right to withhold the information by declaring itself exempt from the Wyoming Public Records Act.
The Supreme Court ruled in the Wyoming Jet Center’s favor, interpreting the Wyoming Public Records Act as applicable to the airport board to keep with the act’s purpose of maintaining an open and accountable government.
Knowing where to start
So far there are 455 names of point people in the public records ombudsman’s contact list for the state of Wyoming.
Along with the ombudsman’s position, Governor Gordon launched “Wyoming’s online checkbook,” WyOpen.gov.
“Transparency in government should be the norm and not the exception,” the welcome page reads. “We are spending public funds — your funds — and it is paramount that you understand how these dollars are spent. WyOpen was created to promote spending transparency. We hope you find this site helpful and informative.”
Members of the public can search transactions and look up what’s spent per state departments per year.
Geographical information like easements, ownership, zoning and property searches are available on Teton County’s Geographic Information System.
If someone files a request for something that’s already available online the designated public records person is supposed to explain where online to find it. As for other Teton County government requests, Gingery said the county will continue to try to evolve with the ever-changing laws and expectations.
“As a government agency we strive to be in the sunshine,” he said. “We want to brag about the great work we are doing. We want to get the information out there.”
Reporter Mike Koshmrl contributed to this report.