By Dee J. Hall
Wisconsin Center for Investigative Journalism
A review by reporters for the Wisconsin Center for Investigative Journalism of the 60 pages of drafting notes associated with sweeping changes to the state’s open-records law offered no clues about who initiated the proposals. But the WCIJ reporters found that the initials and partial names that traditionally appear on the records match those of Legislative Reference Bureau or Legislative Fiscal Bureau staff members who help lawmakers draft bills.
The proposals – which would have allowed lawmakers and state and local officials to withhold documents and information revealing the inner workings of government – were removed from the budget by the Senate on Tuesday (July 7) and by the Assembly two days later.
Legislative Reference Bureau records indicate the changes were drafted in the week before the Legislature’s Joint Finance Committee introduced and passed them on July 2 on a party-line, 12-4 vote without public debate.
Bowing to criticism from across the state and a broad swath of the political spectrum, Gov. Scott Walker and GOP legislative leaders on July 4 vowed to remove the items from the two-year state spending plan. They were included in Motion 999, an often-controversial grab-bag budget amendment whose authors traditionally remain secret.
But the question remains: Who is responsible for putting it in the budget in the first place?
Laurel Patrick, Walker’s spokeswoman, declined to respond to questions about whether the governor – who is set to announce his run for the presidency on Monday – was behind the effort to limit the state open records law.
On July 4, Walker also ducked reporters’ questions about his role. Two days later, Assembly Speaker Robin Vos, R-Rochester, during an interview on Wisconsin Public Radio, declined to discuss Walker’s involvement.
But on Tuesday, Senate Majority Leader Scott Fitzgerald, R-Juneau, acknowledged to The Capital Times that he and other top GOP leaders, along with Walker’s staff, were involved in crafting the open-records changes.
Local journalists cite importance of open records law
Reactions in Eau Claire to the proposed changes reflect those elsewhere in the state.
Tom Giffey, managing editor of Volume One and a former Leader-Telegram reporter and editorial writer, said he has filed a few requests for documents with local government officials over the years and generally received cooperative responses.
An exception, he said, was the media’s efforts to obtain information about a controversial contract between the Eau Claire Area School District and former superintendent William Klaus. Giffey said the Eau Claire school board refused to release documents in response to media requests, and it took an advisory opinion by the state attorney general – which stated that the board was failing to live up to the spirit of the open records law – before the records were made available.
Giffey praised the “presumption of openness” established by the statute, and noted that the law is a tool that is used by ordinary citizens as well as journalists. Had the proposed changes been approved, the public would have found it nearly impossible to obtain government records at the local level as well as from state government, he said.
Henry Lippold, a retired UW-Eau Claire broadcast journalism professor and long-time advocate of government transparency, said the open records law is based on the simple premise stated in its preamble: that everyone is “entitled to the greatest possible information regarding the affairs of government” because “a representative government is dependent upon an informed electorate.”
Lippold noted that Eau Claire County receives relatively few open records requests because its normal operations are transparent. Colleen Bates, first vice chair of the Eau Claire County Board, added that the county respects the public’s “need to know.”
“People should be able to look at what the county is doing and have input,” she said.
Wisconsin’s first comprehensive public records law, passed in 1917, designated every government officer as a legal custodian of public records. Fifteen years earlier, a 1902 court case held that any person had the right to examine and copy public records for any lawful purpose, and courts subsequently ruled in favor of open government unless there were highly extenuating circumstances.
Criticism of proposed change came from left and right
Brad Schimel, Wisconsin’s Republican attorney general, and conservative and liberal groups dedicated to government transparency all decried the proposed changes to the open records law.
Opponents argue the measure would have invited corruption by largely shielding the inner workings of state and local government in Wisconsin from public view.
Under the measure, documents used during the “deliberative process” by the governor, lawmakers and other state and local government officials would be exempt from public disclosure. Those would include opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, as well as “notes created or prepared in the process of reaching a decision concerning a policy or course of action.”
A WCIJ review shows that on May 8, DOA used a similar rationale in denying a River Falls man access to records about Walker’s controversial proposal to eliminate IRIS, a program that allows disabled individuals to use state money to pay for self-directed care. Lawmakers have since altered the program, but disability advocates remain opposed to the changes.
“Making these internal discussions just as open to disclosure as the final version of the budget would inhibit the free exchange of ideas, opinions, proposals, and recommendations among those involved in deciding what to include in the final legislation,” according to a letter signed by Gregory Murray, DOA’s chief legal counsel.
In fact, in their joint statement on July 4, Walker, Vos, Senate Majority Leader Scott Fitzgerald, R-Juneau, and joint finance co-chairs Sen. Alberta Darling, R-River Hills, and Rep. John Nygren, R-Marinette, made the same argument, saying the goal was to “encourage a deliberative process between elected officials and their staff in developing policy.”
The WCIJ found Walker and the DOA also invoked a deliberative process argument in denying requests for records documenting the proposed removal of the “Wisconsin Idea” and the “search for truth” from the University of Wisconsin’s mission statement.
Two parties that sued Walker for records over that issue say they detect the governor’s fingerprints in the now-defunct budget proposal.
Among them is Jud Lounsbury, a columnist for The Progressive magazine, and his wife, Katy, a labor attorney. The couple filed suit to get records after the liberal-leaning Center for Media and Democracy discovered that the Walker administration proposed changing the university’s core mission statement in the state budget.
Although Walker initially denied any involvement, the Wisconsin State Journal, the Milwaukee Journal Sentinel and other outlets used the state open records law to confirm that the governor’s office was behind the effort to rewrite the mission statement.
“Governor Walker’s office acted outside Wisconsin’s open records law in denying our basic request to see communications that were behind removing the ‘Wisconsin Idea’ from our statutes,” Jud Lounsbury said in an e-mail. “So we took them to court. Instead of following the law, they’ve decided to change the law.”
Christa Westerberg, vice president of the Wisconsin Freedom of Information Council, noted similarities between Walker’s invocation of a deliberative process exemption in recent months and the proposal in the “Motion 999” amendment to the state budget passed on July 2 on a party line vote. The measure would have been a “vast rollback of the public’s right to know,” Westerberg said.
“It’s strangely coincidental that we’re seeing the deliberative process exemption in the budget within months of the governor’s office and Department of Administration attempting a similar exemption in recent (open records) responses,” said Westerberg, a Madison attorney who also is legal counsel for the WCIJ.
“When the administration attempted this exemption this spring, it was really an unprecedented attempt to conceal decision-making documents about important issues in the budget,” Westerberg said. “It’s fair to ask, did the governor request this language in Motion 999? And if so, why?”
Brendan Fischer, general counsel for the Center for Media and Democracy, noted the similarities between Walker’s denial of his organization’s request for records related to the UW’s mission statement and the controversial open records changes.
After Walker’s office denied the organization access to the records, citing a “deliberative process privilege,” the Center for Media and Democracy sued in May. That suit has been consolidated with the legal challenge filed by Jud and Katy Lounsbury and is pending in Dane County Circuit Court.
Fischer said the budget proposal, which would have done “grave damage to the state and the public’s ability to know why changes are being made,” surfaced as the Walker administration is battling in court to keep such records secret.
“The similarities between their claims in our lawsuit and the appearance of this in the (budget) proposal seem like more than coincidence,” he said.
Fischer added that if the proposal had been enacted, it would have helped shield Wisconsin’s governor from requests for state records that are sure to mount after Walker’s intention to run for president becomes official on Monday.
“His office and legislators probably already are receiving a lot of requests,” Fischer said, “and that’s going to continue as he runs for president.… (This) would certainly make life easier for the governor and legislators.”
The issue is not over. Walker and GOP leaders said they plan to convene a Legislative Council committee to study possible changes to the open records law – this time allowing other lawmakers and the public a chance to debate them.
(David Gordon, CVPost associate editor, contributed to this report.)
The nonprofit Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.