Wisconsin’s State Motto: Forward or Backward? The Potential Demise of Open Records Law

Posted on Categories Political Processes & Rhetoric, Public, Wisconsin Law & Legal System

In 1851, the state of Wisconsin adopted the simple word Forward as its state motto. It’s a powerful word that has symbolized the State’s progressive history. Lately, though, it seems like we’ve been going backward rather than forward. Case in point: open records law.

Wisconsin’s open records law has been around since 1981. Embodied in sections 19.31-19.39 of the Wisconsin Statutes, the law begins with a broad declaration of policy: “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Wis. Stat. § 19.31. The law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” Id.

Open records law is consistent with transparency in government. Brett Healy, president of the conservative think-tank MacIver Institute, said, “Transparency in government is not a liberal or conservative issue, it is a good government issue. Taxpayers deserve access to government records, so they can keep politicians all across this great state honest and accountable.”

And the law has been used to do just that. As the Milwaukee Journal Sentinel pointed out, “The open records law is used routinely by journalists, activist groups from the left and right, and ordinary citizens” of all stripes to gather more information on particular government actions.

But if the state GOP had its way, no one would ever be able to see any of those records. The law would be a presumption of no public access with an exceptional case of access.

On July 2, the state’s Republican-controlled Joint Finance Committee passed Motion #999, a 24-page last-minute budget wrap-up motion. That, in and of itself, it not an unusual thing. But included in that motion were five sections that would severely gut Wisconsin’s open records law as applied to legislators and the governor. The motion, which passed with all 12 Republican committee members voting for it and all 4 Democratic members voting against it, contained a provision that removed “deliberative records” from public access. “Deliberative records” included a broad range of materials:

Communications and other materials, including opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, and notes, created or prepared in the process of reaching a decision concerning a policy or course of action or in the process of drafting a document or formulating an official communication. Motion #999, pp. 9-10.

Motion #999 also provided that a legislator had “a legal privilege or right to refuse to disclose, and to prevent a current or former legislative staff member from disclosing” records or communications that a legislator—or someone acting on his or her behalf—or a member of the legislator’s staff might have made with myriad enumerated people, ending with the catch-all “any other person,” provided that the records or communication are made “within the course of legislative business.” “Legislative business” included “all aspects of the legislative process, broadly construed,” so much so as to make pretty much everything except records or communications of criminal conduct and political campaigning off limits. See Motion #999, p. 10.

As well, the motion provisions closed to the public “all drafting files and other records relating to reference, drafting, and research requests by” the [non-partisan] Legislative Reference Bureau. See Motion #999, p. 11. The official legislative drafting files are available from the Legislative Reference Bureau. Drafting files, however, do not show legislative intent per se; instead, they just show that a bill has been drafted according to instructions from a legislator. Still, they are handy to show the progression in drafts.

All of the open records changes would have been applicable as of July 1, the day before the motion was even introduced into the Joint Finance Committee.

The public backlash to the open records changes was quick, cutting, and across party lines. Even Republican Attorney General Brad Schimel voiced his opposition, saying, “Transparency is the cornerstone of democracy and the provisions in the Budget Bill limiting access to public records move Wisconsin in the wrong direction.”

Just two days after Motion #999 passed, Governor Scott Walker and Republican leaders backpedaled and said that “the provisions relating to any changes in the state’s open records law will be removed from the budget in its [sic] entirety.” However, the Legislature will, apparently, “form a Legislative Council committee to more appropriately study [the open records provisions].” On July 7, the Senate did vote unanimously to remove the changes.

Republican leaders initially claimed they did not know which lawmaker was the impetus for the open records changes, saying only that there were “multiple requests” for change. On July 4, Governor Scott Walker himself avoided directly answering whether he was involved in proposing or drafting the changes. But just a couple of days ago, on July 7, Senate Majority Leader Scott Fitzgerald (R-Juneau) said that Governor Walker’s office was, in fact, directly involved, as were others from the Assembly leadership. Later that day, Walker’s office acknowledged its participation.

Open records requests have resulted in some embarrassing moments for Wisconsin’s GOP and, particularly, for Governor Walker. According to Capital Times, drafting records obtained by open records requests were used in the following cases:

* In January 2014, the Wisconsin State Journal used drafting records to report that a controversial bill to allow high-income parents to avoid paying tens of thousands of dollars a year in child support was written with the help of a wealthy donor to the bill’s author, Rep. Joel Kleefisch, R-Oconomowoc.

* In 2013, drafting records showed that mining company Gogebic Taconite had been heavily involved in modifications to legislation that would benefit the company related to an open pit mine in northern Wisconsin.

* A school choice lobbyist was heavily involved with writing legislation designed to impose new accountability requirements on schools participating in the state’s voucher program in 2014, according to drafting records.

* A review of drafting records for a proposed 20-week abortion ban showed that it originally included language relating to the health of the mother that was later removed, then added once again as an amendment.

And, of course, there’s the huge faux pas about the Wisconsin Idea. When Walker first rolled out his budget in February, it included several proposals about the University of Wisconsin (UW) system. One proposal suggested rewriting the UW system’s mission statement, dumping the century-old goals of solving problems and making people’s lives better beyond the classroom (a mission that includes teaching, research, outreach, and public service) and essentially turning the system’s mission into one of a technical college: “to meet the state’s workforce needs.”

When that proposal resulted in major public outcry, Walker initially claimed it was a “drafting error.” Records showed, however, that the change was deliberate and made over objections from the UW system. And though Walker has released hundreds of emails and records related to this particular proposal, he has withheld many others and is being sued to turn them over. The Milwaukee Journal Sentinel complains that while Walker has said the open records changes would not take place, he has been operating as if he has an exemption.

It’s quite a stretch to believe that this last-minute changing of something as fundamental to good government as open records was simply to “provide a reasonable solution to protect constituents’ privacy and to encourage a deliberative proves between elected officials and their staff [sic] in developing policy,” as Walker’s office claimed in its July 4 statement. The Progressive magazine and the Center for Media and Democracy filed suit against Walker on May 19. See Dane County Case Number 2015CV001289. According to the Wisconsin Center for Investigative Journalism, its reporters reviewed 60 pages of drafting notes and found that the changes to the open records law were drafted in the week before the Joint Finance Committee introduced them, which means they were drafted around the last full week in June. They were introduced for the first time in committee and there was never any public debate.

Contrary to Walker’s claim in his July 4 statement that the changes were “never intended to inhibit transparent government in any way,” it certainly seems clear that’s precisely how they were intended.

While the changes will not be included in the budget bill, the issue is not gone. Look for a Legislative Council committee to “study” the issue, but be vigilant; this administration’s tendency is to introduce major changes at the last minute or in the middle of night, giving most people little time to mobilize and be heard. Open records are crucial for good, open government, no matter who sits in power. Make sure Wisconsin goes Forward, not Backward.

2 thoughts on “Wisconsin’s State Motto: Forward or Backward? The Potential Demise of Open Records Law”

  1. Your article cleanly details this Governor’s primary flaws, in my opinion. 1. He is over his head – and not up to the leadership standards a Governor should meet or exceed. 2. There are just too many issues, like education & the WI idea, upon which he posseses too little understanding. A scary bad Governor – I suspect Dems hope he wins the GOP nomination for President. No way he holds up under national scrutiny.

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