AG Candidates Agree on Transparency Funding, But Not Related Legal Decisions

Josh Kaul and Eric Toney are miles apart on many issues, but when it comes to open government, the candidates vying for Wisconsin attorney general in the Nov. 8 election agree: more money is needed to handle enforcement of the state’s transparency laws.

The Wisconsin Freedom of Information Council sent questionnaires to Kaul, the Democratic incumbent, and his Republican challenger, Fond du Lac County District Attorney Toney.

The state Department of Justice, which the attorney general heads, is empowered by statute to interpret and enforce Wisconsin’s public records and open meetings laws. The department’s Office of Open Government handles that job, in addition to responding to public records requests.

In assessing the office’s strengths and weaknesses, both candidates mentioned the office’s processing times for handling public records requests and responding to inquiries. Toney said the office is not presently prioritized and that DOJ’s response times to public records requests have increased sharply during Kaul’s tenure.

Both candidates cited the need for more funding. Toney wrote that he would “apply sufficient resources and prioritize the proper administration and enforcement of these laws.” He criticized Kaul for not updating advice online since May 2021, and for posting few responses to public records requests on the DOJ website.

Kaul said the Office of Open Government “does an excellent job with the limited resources available,” but that more resources would allow it to respond more quickly. He highlighted the office’s efforts to provide guidance on open meetings law challenges during the early days of the pandemic and for parsing the effects of Marsy’s Law on public records access.

The candidates also commented on two recent state Supreme Court decisions involving the public records law.

In the first case, Friends of Frame Park v. City of Waukesha, the court in a 4-3 ruling changed the standard for when requesters can recover attorney’s fees in lawsuits over access to public records. The decision makes it easier for government authorities to avoid paying a requester’s attorney’s fees by voluntarily releasing the requested records after a lawsuit is filed.

Both candidates expressed concern about the ruling, which Kaul said “removed a key check on unnecessary delays in public records compliance, undermines transparency in government, and, in many cases, could make obtaining records cost-prohibitive.”

Toney said he would work with the Legislature to address the issues raised by the decision, saying “legal maneuvering by well-funded government lawyers should not absolve members of the public from remedies for violations of public records law.”

In the other case, Wisconsin Manufacturers & Commerce v. Evers, the state Supreme Court held 4-3 that business groups are not entitled to challenge the Wisconsin Department of Health Services’ decision to release data regarding employers linked to COVID-19 outbreaks. WMC and other trade associations had sued to block disclosure of this data, which the Milwaukee Journal Sentinel requested.

Kaul said he agreed with the decision, which he described as a “straight-forward application of the relevant statutory language.” Toney, echoing the dissenting justices, said the case raised serious privacy issues and suggested there may be “instances where third parties must be able to intervene” in records cases, although this ability “shouldn’t automatically be presumed.”

To read the candidates’ full responses, see this column at wisfoic.org.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Council member Jonathan Anderson is a Ph.D. candidate at the University of Minnesota and a former Wisconsin journalist.