Christa Westerberg
Your Right to Know

Walker Action Restricts Public Records

Administration claims records of staff's preliminary analysis should be withheld. Critics argue that's illegal and makes governor less transparent than legislators.

By - Jun 2nd, 2015 02:40 pm
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Gov. Scott Walker at the executive residence, Dec. 30, 2014. Photo by Kate Golden/Wisconsin Center for Investigative Journalism.

Gov. Scott Walker at the executive residence, Dec. 30, 2014. Photo by Kate Golden/Wisconsin Center for Investigative Journalism.

The office of Wisconsin Gov. Scott Walker has crafted a new interpretation of the state’s open records law, claiming it can exempt records used in developing a final decision from disclosure. In this case, “new” is not “improved.”

Earlier this year, records requesters asked the office for its communications with the Department of Administration, after the governor’s proposed budget called for removing the “Wisconsin Idea” from the University of Wisconsin System’s mission statement.

The governor’s office, in response to these requests, refused to provide records containing “preliminary analysis and deliberations created and exchanged by and among employees of DOA and employees of the governor’s office,” before the budget was introduced.

Why? It said releasing these records would “discourage frank internal discussions” among budget-writing staff and “risk public confusion as a result of publishing non-final proposals,” which might not be adopted.

Wisconsin’s open records law creates a broad presumption of openness, and courts have held that exceptions must be “extremely narrow and well-defined.” The federal government and some states have recognized a “deliberative process” or “executive privilege” exemption to disclosure. But Wisconsin has not, and for good reason.

The public has the right to see what information the government used to reach a decision, and what alternatives were considered. Other bill-drafting records are routinely made public after legislation is introduced.  These records also reveal who took part in decision-making — a critical issue in the “Wisconsin Idea” budget snafu, after some documents showed DOA specifically requested that change.

When records are withheld, people inevitably wonder: What are they trying to hide? Public confidence in government is stronger when people can see the process as well as the result.

The Governor’s records denials also suggest the public cannot be trusted with decision-making information, or lacks the capability to distinguish between final and non-final decisions. Yet Wisconsin has gone decades without recognizing an executive privilege to disclosure. Pandemonium has not ensued.

If anything, the need for transparency has grown stronger as the budget is increasingly used to make policy. People want to know the basis for changes that affect key areas of their lives, like long-term care, schools and transportation. They also deserve that information on a meaningful timeline, while there’s still an opportunity to weigh in on changes before they are final.

Two of the denied records requesters have since filed lawsuits. The Center for Media and Democracy was the first. “(B)lowing a new hole in the public records law to keep (the Wisconsin Idea change a) secret would do grave damage to Wisconsin’s traditions of clean and open government,” said general counsel Brendan Fischer.

Katy and Jud Lounsbury and The Progressive magazine challenged the denial of a February request. Their complaint says the withheld records “are quintessentially the kinds of records that the public records law requires to be made available to the public and the press in response to records requests.”

Opposition to an “executive privilege” exemption is shared across the ideological spectrum. Rick Esenberg, executive director and general counsel of the conservative Wisconsin Institute for Law and Liberty, recently blogged that the CMD denial was “wrong under our state law.” He said the idea that records can be withheld “because it might be awkward to expose the government’s deliberative processes … is one that our state Legislature, in enacting the law, has rejected.”

Let’s hope their view wins out.  Otherwise, custodians will have a dangerous new tool to deny access to decision-making that affects us all.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Christa Westerberg, a council member, is an attorney with of McGillivray Westerberg & Bender LLC.

26 thoughts on “Your Right to Know: Walker Action Restricts Public Records”

  1. George says:

    Any politician that wants to limit the public’s access to records clearly has something to hide. If you want to be in charge of the government you lose your right to privacy. This is the only way the people can keep politicians honest and even then people like Walker use a very loose definition of the words honest and integrity.

  2. Joe says:

    Walker is clearly wrong in this instance, and the records should be released. I just wish the various groups in this article had the same revulsion to this behavior when it’s their people in office. When that revulsion is absent, stories like this are simply disingenuous and partisan. It’s not about transparency but politics as they’re looking for a “gotcha” on the governor.

  3. Jeremy says:

    I think the distinction needs to be made by the court on when something ceases to be a “draft, note or preliminary document”. Those are commonly exempt from open record requests.

    It appears to me that only people who have been born in WI and or attended the UW-Madison are upset about the “Wisconsin Idea” topic. It’s much ado about nothing.

  4. Paul says:

    This is not about transparency at all, none of these groups have said anything about Hillary’s missing emails. It’s all politics

  5. PMD says:

    Would you expect a state-based organization to comment on Hillary Clinton’s emails? And both sides play politics with stuff like this Paul. Let’s not pretend one party is more pure here.

  6. Joe says:

    PMD – Paul and I aren’t saying the Republicans are more pure. We’re just pointing out that they aren’t doing these requests on and dealings the Democrats do. They didn’t do it under Doyle, when there was actual corruption going on. Each side has their “non-partisan, watchdog” groups with their great names, but they’re just arms of the party looking to find dirt on the opposition and unwilling to turn their scope at their own people.

  7. PMD says:

    I get that Joe, and I agree with you. But Paul, with his reference to Hillary Clinton, is showing (as he’s done before) that he’s just a partisan here. Selective partisan outrage is the norm for him.

  8. bruce murphy says:

    This group, the Wisconsin Freedom of Information Council, was just as active in the Doyle years, because its run by journalists. You could call that self-serving (though it arguably also serves the public’s interest), but not partisan.

  9. Joe says:

    “Because it’s run by journalists” You’re not going to pretend journalists are objective, are you? That’s truly laughable but completely expected.

  10. PMD says:

    @Joe So is the WFIC just a left-wing group masquerading as nonpartisan? Evidence for this?

  11. Joe says:

    PMD – “Just a left-wing group”? I would say, no, but bias is present. A brief review of their “Right to Know” articles posted on their site prior to Walker’s administration shows they steered pretty clear of any criticism of Doyle. They were active in going after county boards (in Republican counties), the Supreme Court, the AG, businesses, and anyone that would make the claim that a person with a communicable disease or a concealed/carry permit should not have their identity put out in public records. Was my search into each article exhaustive? Of course not. But, if such a cursory look shows that not once from 2003-2009 not one of the articles has Doyle in the title, then, in 2010, the group asks how open Walker will be (with subsequent years highlighting Walker in the title), that’s a pretty clear indication of their political leaning. Like I said, very brief overview, but very easy to detect bias.

  12. PMD says:

    Bruce is wrong then when he says that it was just as active in the Doyle years? I know their former leader Bill Leuders talked about Doyle with the media and in columns (I found them at Wisconsin Watch). So maybe sometimes people see bias where there isn’t any because of their own bias.

  13. Allison says:

    @bruce murphy-the author signed the petition to recall Walker. So she clearly has her own bias here

  14. PMD says:

    But Rick Esenberg agrees with her! He’s as right-wing as it gets and hardly anti-Walker.

  15. Allison says:

    The Vice President, treasurer, secretary of this organization all signed the Walker recall petitions. They should disclose that when they write stories like these.

  16. PMD says:

    I’m sure you are a consistent advocate for transparency. Like when WEDC announces a loan or grant, it should also disclose whether or not any of the recipient’s employees donated to Walker. Sure people can look it up, like they can look up whether or not someone signed a recall petition, but it should be disclosed upfront so people can decide whether there is bias present.

  17. Allison says:

    @PMD-Actually I am a consistent advocate for transparency. I agree with you that there should be full disclosure in all instances and then let the reader make up their mind. The folks at this group clearly have a bias against Walker, so whenever they write about him they should disclose that and then let the reader form their own opinion.

  18. SteveM says:

    Ah! The old black list comes into play again. @allison & PMD Does this preclude the signers of the petition from ever conducting business, running for office, or even stepping foot in a suburban community for the foreseeable future? In your disclose all world, whould we all be required to wear an asterisk on our lapel?

  19. Joe says:

    Steve – a claim was made that, because the group that wrote the article is comprised of journalists, the group and it’s articles are objective. They aren’t a news organization, so they don’t need to pretend to be objective (they’re failing if they are trying). No one is asking for a laundry list of caveats, lists, etc. One person, Bruce, was saying the people were objective and others (Allison and I) showing they aren’t. Because the article is editorial and not news, I disagree with Allison that I think the people should disclose their beliefs/leanings. If they begin to claim they’re objective, then I think it would be warranted……not necessary, per se, but would go a long way in people taking the author more seriously. In terms of PMD’s statement, while people have the right to participate in the democratic process, others have the right to freely associate. If I choose to patronize a business because of the beliefs of the owner, that’s my right. I can also avoid businesses for the same reason. If a business person makes public political statements or has various policies in their business, there are potential consequences, both positive and negative (boycotts or increased business). What a beautiful segue into a discussion of money as speech……….

  20. SteveM says:

    Joe-Indeed. Many of us are being hung out to dry because we exercised our rights, within the law, to petition for a recall. Yet, some in this thread wouldn’t hold that same standard to wealthy contributors. Interesting.

  21. Joe says:

    Steve – who is being “hung out to dry” and how? I know of anti Walker people trying to activate boycotts of local businesses (completely backfired), but have only heard of any boycott talk regarding Penzeys from people on the right. When you go out of your way to insult your customers, though, that’s to be expected.

  22. SteveM says:

    Who is being hung out to dry? Really? Whenever a news story about a public employee or official pops up there are trolls who report signers. School boards will use the list when hiring superintendents…Grafton. And then there’s this: http://goo.gl/sswZGL

    Boycotts don’t have much effect in this country, but active attacks are very real.

  23. Joe says:

    Steve – I think the problem comes from what your idea of being “hung out to dry” means. When public officials (salaries paid by taxpayers) make public statements (signing the petition is a public statement), it is not being “hung out to dry” if a community holds that person accountable for that public position. It’s the responsibility of the voter to be informed about the positions of the candidates and office holders to make sure they reflect the values and positions of the electorate. Voters holding public officials accountable is not hanging them out to dry or attacking them, especially when the person in question for the position (school board, superintendent, representative) has some say in how taxpayer money is spent. In the case of the judge, people would like to think judges are non-partisan. Signing the petition is making a very public partisan statement. If the politics of the judge (he chose to disclose his politics) do not jive with the people in the district he serves, then it is the right and responsibility of the voters to elect the person that reflects their values. Of course all have the right to participate in the political process by signing the petition or not, but that does not mean that one may or may not have consequences attached to that decision. To think a public official can make consequence free, public, political statements is really odd thinking.

  24. SteveM says:

    So, Joe, elections have consequences and the winners write the history. Please, don’t lecture me and insist that Reagan’s 11th commandment applies to those outside of the GOP. Nor should you go down the road of “all polititians are crooks.” Our constitution encourages representatives voicing their constituents’ beliefs. 1st amendment be damned, huh?

  25. Paul says:

    SteveM, it sounds like you just want the first amendment to apply to the first person who speaks and no one has the freedom to respond. The people I know that hold positions like Wolfgram, go out of their way to avoid political situations

  26. Joe says:

    Steve – I’m not sure if you’re understanding what I’m saying. If a public official makes a public statement, it is not an attack or being “hung out to dry” for the electorate to hold that official accountable in an election. That’s all I’m saying.
    I vehemently oppose the 11th commandment. My earlier posts bear witness to that.
    Not all politicians are crooks. I’ve never said that. I do think far too many opt for being political over principled.
    Your statement, “Our constitution encourages representatives voicing their constituents’ beliefs,” directly contradicts your sentiment that holding an official accountable for their position is an attack or is hanging them out to dry. The majority of the constituency he served supported Walker. His signing of the petition placed him at odds with the values and beliefs of his constituency, so they voted in someone who reflected their attitudes. Yes, the judge has the right to express his opinion, but that doesn’t mean that the public has to put him back in office just because he was exercising his first amendment rights.

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