Madison— Gov. Scott Walker announced over the weekend that Republicans were abandoning their plan to create new exceptions to the state’s open records law, but for months the all-but-certain presidential candidate has been operating as if one exemption already was in place.
Two months ago, Walker declined to release records related to his proposal to rewrite the University of Wisconsin System’s mission statement anderase the Wisconsin Idea from state law. He argued he didn’t have to provide those records to the Milwaukee Journal Sentinel and others because they were part of his office’s internal deliberations.
The Progressive magazine and the liberal Center for Media and Democracysued Walker over those denials. The cases have been combined, and the litigation is pending in Dane County Circuit Court.
On Thursday, Republicans on the Legislature’s Joint Finance Committeeabruptly introduced and passed new exemptions to the open records law — including a broad provision that would explicitly create an exception for “deliberative materials.” Such an exception would make it impossible for the public to see how state, local and school officials made their decisions.
It also would have made a host of records from lawmakers’ offices inaccessible to the public.
The public reaction was swift, with groups on the left and right decrying the attempt to stifle the public’s access to government records. By Saturday, Walker and legislative leaders announced they were abandoning the plan, while continuing to evade saying who pushed for the idea in the first place.
The leaders have said they are pulling back on the plan “in its entirety,” but so far no specific language for the fix has been put forward.
On Monday, both Assembly Speaker Robin Vos (R-Rochester) and Joint Finance co-chairman Rep. John Nygren (R-Marinette) said they believed they would be removing all the language including a proposed expansion of legal privilege for legislators that would allow them to withhold any documents and any information from the public as they see fit.
They said they would also be backing off changes to the state’s online system for court records. With its Thursday vote, the Joint Finance Committee approved allowing some dismissed charges to come off that site.
While Walker says he’s opposing the change in records policy, he isn’t altering his claim that he can withhold documents that reflect internal deliberations.
Walker spokeswoman Laurel Patrick argued existing law allows the governor to keep such records from the public.
“The governor’s office always has and continues to operate under the current law and regularly releases documents that could fall within the proposed ‘deliberative materials’ exemption,” she said Monday in an emailed statement to the Journal Sentinel. “The materials withheld are protected by current law, and we will continue to fulfill open records requests pursuant to current law, as we have always done.”
But observers have said Walker’s legal claims aren’t in keeping with the state’s records law.
“The state’s open records law creates an extremely strong presumption that documents generated by government officials are subject to disclosure,” Rick Esenberg, president and general counsel of the conservative Wisconsin Institute for Law & Liberty, wrote in a blog post for the Journal Sentinel.
“The notion that they can be withheld because it might be awkward to expose the government’s deliberative processes or internal discussions is not, as I say, a ridiculous idea, but it is one that our state Legislature, in enacting the law, has rejected.”
What records Walker is withholding — and how many — remains unclear. His administration has released hundreds of pages of records in response to his office’s consideration of changes to the Wisconsin Idea but has said it is holding back some others.
Asked Monday whether Walker’s office had helped develop the open records changes, Vos didn’t directly answer. He said Republican legislative leaders had worked with lawmakers and others on it.
“There was a collaborative effort,” Vos said.
Walker introduced his budget in February, and in it he proposed spinning off the UW System as a public authority that would have less oversight from state government. In that plan, he proposed rewriting the system’s mission statement and excising from state law the Wisconsin Idea, which says the system is meant to improve the lives of people beyond the classroom and that its boundaries are the boundaries of the state.
In the face of criticism over the plan, Walker said it was a “drafting error” and backed off the proposal. Public records showed the change in fact was deliberately made and had been presented to Walker’s office for review multiple times. Walker maintained the changes to the mission statement were the result of a miscommunication.
Months later, Walker’s office and his Department of Administration released hundreds of emails and other records related to the changes but refused to release some other documents.
“A candid, complete, and creative evaluation of the state’s finances within DOA and within the Governor’s office is inherent to the development of the Governor’s executive budget,” Walker assistant legal counsel David Rabe wrote to the Journal Sentinel in May. “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. Disclosure of this narrow category of records — limited to discussions within DOA, within the Governor’s office, and between the two — would discourage frank internal discussion and harm the quality of the final executive decision.”
Also, release of such records “would risk public confusion as a result of publishing non-final proposals, which may not ultimately have been adopted,” he argued.
In their arguments to the Journal Sentinel and others, attorneys for Walker didn’t cite any state court cases to back their contention when they could withhold such records. Instead, they said they could hold back the records under a long-standing balancing test that allows them to determine whether the public benefit of withholding records outweighs the public benefit of releasing them.
But lawyers who specialize in the open records law say they can’t rely on that test — which is supposed to be conducted on a case-by-case basis — to create a broad rule that would exempt a whole class of records.
Brendan Fischer, the general counsel for the Center for Media and Democracy, said he believes the attempt to advance the change to the open records law and the quick retreat will ultimately help their lawsuit. The GOP attempt to rewrite the open records law shows the exception Walker has been claiming does not in fact exist, he said.
“I think that’s a strong argument in our favor,” he said. “It reemphasizes the argument we’ve been making all along.”
Patrick, the Walker spokeswoman, said the proposed changes to the open records law would not have affected the litigation brought by the Progressive and Center for Media and Democracy because the cases had been filed before the changes to the law would have taken effect.
Not just media
Normally, Attorney General Brad Schimel defends Walker and other state officials when they are sued, but he declined to represent Walker because of a “conflict of interest in other cases involving similar legal issues,” Schimel spokeswoman Anne Schwartz said. The Republican attorney general has sharply criticized the proposed changes to the open records law, saying they would “move Wisconsin in the wrong direction.”
With Schimel out of the picture, lawyers in Walker’s office and at the Department of Administration are handling the case.
It is not just media outlets and advocacy groups that have had documents about internal discussions withheld.
George Zaske of River Falls in February sought records from the Department of Administration to find out about the rationale behind proposed changes to state long-term care programs.
He has a son with a disability who will turn 18 in July whom he planned to enroll in the IRIS program that Walker proposed eliminating. Legislators have since backed off on that idea.
In May, the administration released a few emails to Zaske but withheld other documents, saying they didn’t have to be released because they were deliberative in nature.
Zaske said he was surprised he couldn’t see who had backed the idea or the reasoning for putting it forward. A lawyer, Zaske said he is considering suing over the matter.
“It’s still a big mystery,” Zaske said of the long-term care changes Walker proposed.
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