Wisconsin Governs Where the Sun Don’t Shine

Wisconsin is a Dark State

This is Sunshine Week—a week to celebrate (or grieve) the state of open government in America—and, as is usually the case, this year it presents an opportunity to demonstrate just how truly hostile most politicians in both parties are to transparency.

Before we get to this year, it’s worth taking a look at some of the biggest examples of egregious conduct and court rulings of the past to understand how notorious the state has become in governing behind closed doors.

Often enough, damage is inflicted by the state’s courts. In a stunning 2014 decision, for example, a state appeals court ruled that when a government authority says a requested record belongs to a class of records exempt from access under the law, then it is exempt, no matter whether the record is authentic or forged, and that even a judge does not have the right to review those records to see if the government entity is telling the truth.

In other words, so-called exempt records are exempt any time officials say they are, even if those officials fabricated the documents, and no scrutiny or exposure is allowed, paving the way for officials to manufacture administrative fantasies and citizenry nightmares.

It was a breath-taking decision inviting all sorts of corruption, and it took place without much notice in progressive Wisconsin. Now, state and local governments are places where bureaucratic dreams can indeed come true, one way or another.

What’s most concerning about the judicial trend is that, in the bad decisions, judges are actively rewriting the law, and not for the better.

In another case, Madison Teachers, Inc., v Scott, the Supreme Court allowed officials to withhold the names of those who had voted midway through a three-week union election after the union requested them because, according to the court, union officials might have used those records to pressure those who had not yet voted.

Conservatives drove that decision, presumably because they didn’t like the union. I make that assertion because the decision effectively rewrote the statute by allowing the motivations, or potential motivations, of requesters to be considered in an open records request, contrary to the plain language of the law, namely, that an open record is open to anyone and for any reason.

Of course, in all these cases and similar ones, the Legislature could take action by passing new language that would underscore its true intent and render such court decisions null and void, but, given the hostility to transparency in the legislature, not much of that is going to happen anytime soon.

Exempt for Me but Not for Thee

This is as good a spot as any to point out that the legislature exempts itself from the open meetings and open records laws. Technically, the open records law does apply to lawmakers but not the records retention law, which requires government officials to retain records for a certain length of time.

For most records, the required retention is seven years. But while the Legislature has mandated this program for others, it has refused to mandate it for itself, so lawmakers don’t have to keep public records for any amount of time.

It’s a pretty crafty way of end running the law. Technically, while some state legislatures exempt themselves from open records laws outright, our legislature achieves the same goal but in a way that allows them to say they are bound by the law, and proudly so. And, technically, they are bound. If you ask a legislator for a public record and that lawmaker has that record, he or she must release it. But if he or she just happened to destroy it the day before, it’s the requester’s tough luck. So legislators can use and then extinguish documents they don’t want anybody to see. It effectively exempts them from the law.

That they can still proclaim themselves champions of transparency—we aren’t like those lawmakers in other states who don’t have to abide by open records laws!—shows just how devious lawmakers are in wanting to camouflage their hostility to transparency.

In another court decision, the high court effectively rewrote the public records statute to create a new exemption for documents, such as emails, that were created on government computers for personal rather than public purposes.

The case involved a request for all emails sent by teachers on work computers. The teachers did not mind turning over work emails but balked at turning over personal emails sent on those computers, and so they went to court to block the school district from releasing them.

Before the ruling, all documents on government computers were considered public records that must be released; after the court’s 5-2 decision, government workers no longer have to turn over personal communications composed on those computers. That might seem reasonable, but, as the dissenting justices on the court pointed out, that means taking the word of those employees that the records were actually for personal use. After all, who knows if the records are truly personal if they don’t have to be released.

Make Money, get Fined

Fast forward to the present and resistance to openness continues at all levels of government. In 2023, the state legislature passed a horrendous law that allows law enforcement to charge certain requesters for video camera redactions. It’s actually not the charge so much—assuming they are not excessive—as two other parts of the bill that are damning.

First, the law separates those who request records into two distinct groups—those who would not use the records for “financial gain,” and those who would use the records for financial gain. The law is vague and there are exceptions but obviously the financial gain aspect targets media and newspapers and for-profit journalists.

Second, if someone uses a redacted video cam recording for profit that they requested without paying the charge, there is a $10,000 fine. Never mind that the previous open records law explicitly stated that a requester’s intent or motive in seeking the records cannot be considered. Now it is, and it is to make those who use it to produce for-profit news pay.

What’s more, the act flips the intent of the open records law on its head. The whole point of the law is to hold government officials accountable. Now the citizenry is going to be held accountable for what they request instead.

Pitifully, there’s almost never any serious penalty when an official breaks open government laws, but now lawmakers have decided they want to make their constituents pay dearly when they break a law about requesting records.

Right now, an open meetings violation is simply a forfeiture of between $25 and $300. A public records infraction may involve criminal penalties for destruction, damage, removal, or concealment of public records with intent to injure or defraud, or for altering or falsifying public records, but all other infractions involve civil forfeitures, not to exceed $1,000 against a legal custodian. Damages and legal fees may also have to be paid, but taxpayers pick up the tab for all of those.

In many cases, district attorneys, when they don’t ignore complaints completely, merely admonish the guilty parties without issuing citations. And when they do, what are the consequences? Many times the open meetings fines are $25, or a scolding (Don’t do that again!), or a demand that the guilty take an hour of open government training, which of course is next to impossible to find.

The problem is, when a prosecutor loudly announces that he or she doesn’t consider open meetings or open records violations serious enough to cite or serious enough to impose even the statutory penalty for those violations, he or she is announcing to the world that it is okay for others to break that law.

This bill, by the way, was a bipartisan nightmare, with both Republicans and Democrats embracing it. It passed 22-10 in the Senate, with only Sen. Steve Nass opposing it on the Republican side. In the Assembly it was a slaughter, passing 94-3, with the three dissenters all Democrats. Evers signed it last March.

There are notable exceptions to the hostile against transparency. For years Sen. Chris Larson (D-Milwaukee) has sponsored legislation to end the open records retention exemption. Both parties always kill the bill.

This year, too, Reps. Todd Novak (R-Dodgeville), Rob Swearingen (R-Rhinelander) and Sen. Van Wanggaard (R-Racine) are preparing to introduce a bill to overturn a horrible Supreme Court decision requiring that a court act on an open records case before considering if attorney’s fees can be awarded to the requester.

Specifically, a couple of years ago, the high court in Friends of Frame Park, U.A. v. City of Waukesha overturned precedent by requiring that someone who files an open records lawsuit can only collect legal fees by prevailing in court. The decision allows a government to stall and delay the release of requested records until a requester files a lawsuit, then simply turn over the requested record without having to pay legal costs incurred by the requester.

Prior to the Friends of Frame Park decision, a court could determine if the actions of the requester that led to the release of the record had in large part resulted in the records’ release.

The proposed legislation would reverse the Friends of Frame Park, U.A. v. City of Waukesha decision by giving a judge the discretion to award fees no matter the outcome. As the Wisconsin Newspaper Association points out, that standard is substantially like the standard that applies for a requester to obtain attorney fees and costs under the federal Freedom of Information Act.

Among the supporters of the act are Wisconsin Freedom of Information Council, the Wisconsin Institute for Law & Liberty, Wisconsin Transparency Project, and Americans for Prosperity-Wisconsin.

The bottom line is, the shine has long been off when it comes to transparency in Wisconsin. These are dark times in an already dark state. Advocates for open government everywhere need to come together to craft new open government laws that reflect the times. Specifically, it’s time to convene a stakeholders’ group to reform the open government laws.

Former Gov. Scott Walker promoted the idea during his first campaign for governor but it never became reality. In 2015, then attorney general and now Supreme Court candidate Brad Schimel hosted an open-government summit to address the law’s inadequacies, acknowledging that many in the public and media viewed the state’s open meetings and public records laws as outdated.

Such a gathering could hash out and resolve disagreements, and even lead to new reform ideas. There are several that are no-brainers.

First, put the Legislature under the records retention law. Achieving that will be as easy as finding a pot of gold at the end of a rainbow.

Second, make bill drafts and internal legislative investigations open to the public. State statutes should be amended to make clear that legislative drafting files are public records from the very moment they are created—or at the least from the very moment a bill is formally introduced—and that no attorney-client privilege can be claimed between bill drafters and lawmakers.

State law should also require certain best practices for those drafting files. Among other things, the law should mandate the inclusion of all drafters’ notes and make clear they do not fall within the open records exemptions for document drafts. After all, it is a drafting file. Emails, legal opinions, constitutional assessments, communications with lobbyists and special interest groups pertaining to the proposed legislation must be open, and, as in the past, drafters should be required to note if “the person who requested the draft is different from the person for whom the request is to be drafted. If the person who requested the draft is a lobbyist, note the organization that the lobbyist represents.”

Finally, what about amending the state constitution to include a “right to know” provision. That’s exactly what Florida did a long time ago. The Florida state constitution gives “every person the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.”

The provision applies to the legislative, executive, and judicial branches of government and to every agency or department created by the three branches, as well as to counties, municipalities, and districts; and to each constitutional officer, board, and commission, or entity created pursuant to law or the constitution.

Likewise, all meetings of any public body of the executive branch or of any public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business is to be transacted or discussed, must be open, and meetings of the legislature must be open and noticed.

The Florida constitution allows for exemptions but those must be passed by a two-thirds vote of each house of the Legislature and signed into law, “provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law.”

It’s time for some courageous lawmakers to propose such a constitutional amendment for Wisconsin. The sooner, the better.