Steven Walters
The State of Politics

Why Republicans Tried to Repeal Open Records

Frustrated with open records requests that have embarrassed them, GOP leaders decided they’d had enough.

By - Jul 13th, 2015 10:39 am
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Scott Fitzgerald

Scott Fitzgerald

Now we know what Republican Gov. Scott Walker and GOP legislative leaders don’t want you to know: How a bill really becomes a law.

At 5 p.m. on July 2, those elected officials buried in a 67-item, 24-page final budget amendment a repeal of Open Records Law that would have kept secret everything about the Legislature’s “deliberative” process, including:

-Correspondence from constituents and special-interest groups.

-Interactions between legislators and current and past staff members.

-Advice from staff lawyers about whether changes they want to make are constitutional.

-Bill-drafting instructions they give that come directly from special-interest groups.

The proposed law would have also given Walker aides broad license to keep secret anything they deemed part of that “deliberative” process.

And it would have even advised Wisconsin judges on how to interpret these changes: Rule that contested records, documents and other state government materials are secret.

But, within 48 hours, Walker and the same legislative leaders were buried by a firestorm of outrage – from their fellow Republicans, usually friendly conservative special-interest groups, news organizations and outraged citizens.

No other state would have cast such a thick blanket of secrecy over its lawmaking process. And apparently nobody on the Walker-for-President campaign team saw this as a losing issue.

So, at 5 p.m. on July 4, the same group of GOP leaders that drafted the Open Records repeals in secret – and got all 12 Republicans on the budget-writing Joint Finance Committee to vote for them – promised to remove them from the budget. That happened Tuesday.

As we ultimately learned, Walker aides, Senate Majority Leader Scott Fitzgerald and Assembly Speaker Robin Vos all played roles in drafting the Open Records Law overreach. But before then, it was another of those all-too-common immaculate conception moments in the Capitol; a bill is birthed with no author, as none of the 82 Republican legislators had the courage to put his or her name on the repeal of open records.

Why did state government’s top elected Republicans try to gut the Open Records Law they took oaths to follow? Fitzgerald told Milwaukee talk-show host Charlie Sykes there was “no great meeting behind closed doors” that drafted the changes. Instead, Fitzgerald said, there is a “high level of frustration” with Public Records Law controversies across state government – including in the UW System, the governor’s office, state agencies and the Legislature – that “influences how we do business in the Capitol.”

Fitzgerald said legislators also closely watched the outcome of a lawsuit against Democratic Sen. Jon Erpenbach, who argued that senators can withhold identifying the names of those who contact him about important issues pending in the Capitol. Erpenbach lost that lawsuit, but he told the Senate that nothing justifies sealing all records about lawmaking. “I will defend every single reporter’s right to sue me,” Erpenbach declared.

Legislators and Walker have been embarrassed by records made public that documented improper staff review of loans made by the Wisconsin Economic Development Corporation (WEDC) and requests for favors from campaign contributors. Walker is also being sued over his UW System budget deliberations, and had been increasingly resistant to open records requests.

Dee Hall, whose reporting touched off the so-called “caucus scandal” that sent some legislators to jail and who documented poor staff review of WEDC loans, reported that Walker has used language similar to that in the proposed budget amendment to deny Open Records requests.

Legislators also bristle at requests that force them to disclose the names of constituents and their concerns. “In my view, there should be some privacy for constituents to contact my office,” Joint Finance Committee Co-chairman Rep. John Nygren told reporters last week. “You guys don’t give a (expletive) about that. All you want to do is make this about, somehow, that we’re stifling transparency for the press.”

Fitzgerald also told Sykes it’s no longer just reporters making Open Records requests. “Cottage industry special-interest groups that didn’t exist” 15 years ago are also tying up state government with those requests, Fitzgerald noted.

One example of how the Open Records Law has worked: Years ago, a Capitol reporter used it to get out-of-state travel records for a controversial senator no longer in office. Because taxpayers paid for the trip, the records included the title of a movie the senator watched in his hotel room. Because it was not a controversial or pornographic movie, the movie title was never reported.

But disclosing it, and what it cost taxpayers, helped hold that senator accountable for how the public’s money is being spent.

Steven Walters is a senior producer with the nonprofit WisconsinEye public affairs network. Contact him at stevenscwalters@gmail.com

3 thoughts on “The State of Politics: Why Republicans Tried to Repeal Open Records”

  1. Bruce Thompson says:

    A couple of comments:
    1. If the outrage had been limited to Democrats and liberals I believed they would have toughed it out. I am guessing the legislators weren’t expecting the response from the right.
    2. Particularly with Walker’s running for president, there should be a lot of interest from the national press in the process of developing this budget. It will be interesting to see what they find.

  2. PMD says:

    Seriously when Mike Nichols, Rick Esenberg, and Christian Schneider come super close to gently criticizing Walker and GOP legislators, you know something’s not right.

  3. Records law expert says:

    Anyone who is actually an expert on public records law knows that there are puh-lenty of statutory and common law exceptions under the law that enable records custodians to redact or withhold records in order to protect privacy and safety. Twisting this around to make it all about “protecting constituents” is just a red herring.

    And if it’s really about government being “tied up” responding to requests, what the legislature should have done was allowed government agencies to charge a reasonable hourly fee for the time it takes to respond to records requests (which they are currently not allowed to do). That would certainly discourage people from making frivolous requests.

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