In 1851, the state of Wisconsin adopted the simple word Forward<\/a><\/em> as its state motto. It\u2019s a powerful word that has symbolized the State\u2019s progressive history<\/a>. Lately, though, it seems like we\u2019ve been going backward rather than forward. Case in point: open records law.<\/p>\n Wisconsin\u2019s open records law has been around since 1981<\/a>. Embodied in sections 19.31-19.39 of the Wisconsin Statutes, the law begins<\/a> with a broad declaration of policy: \u201call 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.\u201d Wis. Stat. \u00a7 19.31. The law \u201cshall 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.\u201d Id.<\/em><\/p>\n Open records law is consistent with transparency in government. Brett Healy, president of the conservative think-tank MacIver Institute<\/a>, said<\/a>, “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.\u201d<\/p>\n And the law has been used to do just that. As the Milwaukee Journal Sentinel<\/a> pointed out, \u201cThe open records law is used routinely by journalists, activist groups from the left and right, and ordinary citizens\u201d of all stripes to gather more information on particular government actions.<\/p>\n 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.<\/p>\n On July 2, the state\u2019s Republican-controlled Joint Finance Committee passed Motion #999<\/a>, 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<\/a> that would severely gut<\/a> Wisconsin\u2019s 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 \u201cdeliberative records\u201d from public access. \u201cDeliberative records\u201d included a broad range of materials:<\/p>\n 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.<\/p><\/blockquote>\n Motion #999 also provided that a legislator had \u201ca legal privilege or right to refuse to disclose, and to prevent a current or former legislative staff member from disclosing\u201d records or communications that a legislator\u2014or someone acting on his or her behalf\u2014or a member of the legislator\u2019s staff might have made with myriad enumerated people, ending with the catch-all \u201cany other person,\u201d provided that the records or communication are made \u201cwithin the course of legislative business.\u201d \u201cLegislative business\u201d included \u201call aspects of the legislative process, broadly construed,\u201d 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.<\/p>\n As well, the motion provisions closed to the public \u201call drafting files and other records relating to reference, drafting, and research requests by\u201d the [non-partisan] Legislative Reference Bureau<\/a>. See Motion #999, p. 11. The official legislative drafting files are available<\/a> 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.<\/p>\n 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.<\/p>\n The public backlash to the open records changes was quick, cutting, and across party lines<\/a>. Even Republican Attorney General Brad Schimel voiced<\/a> his opposition, saying, \u201cTransparency is the cornerstone of democracy and the provisions in the Budget Bill limiting access to public records move Wisconsin in the wrong direction.\u201d<\/p>\n Just two days<\/a> after Motion #999 passed, Governor Scott Walker and Republican leaders backpedaled and said<\/a> that \u201cthe provisions relating to any changes in the state\u2019s open records law will be removed from the budget in its [sic] entirety.\u201d However, the Legislature will, apparently, \u201cform a Legislative Council committee to more appropriately study [the open records provisions].\u201d On July 7, the Senate did vote unanimously<\/a> to remove the changes.<\/p>\n Republican leaders initially claimed<\/a> they did not know which lawmaker was the impetus for the open records changes, saying only that there were \u201cmultiple requests\u201d for change. On July 4, Governor Scott Walker himself avoided directly answering<\/a> whether he was involved in proposing or drafting the changes. But just a couple of days ago<\/a>, on July 7, Senate Majority Leader Scott Fitzgerald (R-Juneau) said that Governor Walker\u2019s office was, in fact, directly involved, as were others from the Assembly leadership. Later that day, Walker\u2019s office acknowledged<\/a> its participation.<\/p>\n Open records requests have resulted in some embarrassing moments for Wisconsin\u2019s GOP and, particularly, for Governor Walker. According to Capital Times<\/a><\/em>, drafting records obtained by open records requests were used in the following cases:<\/p>\n * In January 2014, the Wisconsin State Journal used drafting records to report<\/a> 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\u2019s author, Rep. Joel Kleefisch, R-Oconomowoc.<\/p>\n * 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.<\/p>\n * 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.<\/p>\n * 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<\/a> that was later removed, then added once again<\/a> as an amendment.<\/p><\/blockquote>\n And, of course, there\u2019s the huge faux pas about the Wisconsin Idea<\/a>. 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\u2019s mission statement, dumping the century-old goals of solving problems and making people\u2019s lives better beyond the classroom (a mission that includes teaching, research, outreach, and public service) and essentially turning the system\u2019s mission into one of a technical college: \u201cto meet the state\u2019s workforce needs.\u201d<\/a><\/p>\n When that proposal resulted in major public outcry, Walker initially claimed it was a \u201cdrafting error.\u201d 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<\/a> to turn them over. The Milwaukee Journal Sentinel<\/em> complains<\/a> that while Walker has said the open records changes would not take place, he has been operating as if he has an exemption.<\/p>\n It\u2019s quite a stretch to believe that this last-minute changing of something as fundamental to good government as open records was simply to \u201cprovide a reasonable solution to protect constituents\u2019 privacy and to encourage a deliberative proves between elected officials and their staff [sic] in developing policy,\u201d as Walker\u2019s 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<\/a>, 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.<\/p>\n Contrary to Walker\u2019s claim in his July 4 statement that the changes were \u201cnever intended to inhibit transparent government in any way,\u201d it certainly seems clear that\u2019s precisely how they were intended.<\/p>\n