Senate Majority Leader Scott Fitzgerald, R-Juneau, on Tuesday said he was at the table, along with Assembly leadership and staff for Gov. Scott Walker, for the drafting of a set of provisions passed by Republicans on the Legislature's budget committee that would gut Wisconsin's open records laws.
Republicans in the Senate plan to introduce an amendment abandoning those changes, along with a handful of others approved by the Republican-led Joint Finance Committee late last week. The Senate is set to take up the budget and a package of changes to the state's prevailing wage laws on Tuesday.
"It came from a number of different sources," Fitzgerald told reporters on Tuesday. "Some of them related to, certainly, the lawsuit that Sen. Erpenbach was involved in. There was some suggestions from the UW System on open records requests related to some of their research — and also kind of some issues, I think, related to the Legislature and the executive branch dealing with open records requests. So, was I there when it was being put together? Yeah, absolutely. I was there. We tried to put something together we thought that made sense. But it’s not going to be accepted publicly and that’s why we’re here pulling it back today."
Fitzgerald, like other Republican leaders, did not say specifically which legislator or legislators requested the changes.
In 2011, the conservative John K. MacIver Institute for Public Policy asked Erpenbach for emails under the state's open records law. Erpenbach returned the emails, with names and addresses redacted. A court eventually ruled he must release the names and addresses of those who had contacted him during the fight over Act 10.
Bringing up the lawsuit during the Joint Finance Committee's debate, Erpenbach said as much as he disagrees with MacIver, he will defend the organization's right to sue him for records. MacIver president Brett Healy cheered him on.
Asked about Fitzgerald's comments on Tuesday, Erpenbach said there's a "huge difference" between the MacIver lawsuit and the changes passed by the Joint Finance Committee. He added that he didn't receive support from his Republican colleagues in the Senate at the time of the lawsuit.
"What they did had nothing to do with the lawsuit that MacIver had against me, as far as I'm concerned," Erpenbach said, adding that he applied the balancing test required by the open records law when he released the redacted records, but MacIver disagreed with his interpretation.
The proposed changes included no provisions regarding UW System research.
Asked whether Walker's office was involved in the changes, Fitzgerald said, "Sure. Yeah."
When asked on Saturday if he knew the measure was included in Motion #999 before it passed, Walker avoided giving a yes or no answer while acknowledging that he was aware of the tide of public opinion opposed to it.
Fitzgerald said lawmakers talked to the governor's office along the way about open records issues and the number of open records requests Walker's office receives.
"The Assembly obviously was involved as well," Fitzgerald said. "And then, I think, if you didn't do this and it wasn't part of the budget, you would probably try to address it as separate legislation in the fall. But the environment being as tough as it is, now I don't know if it'll ever get there."
A spokeswoman for Walker said on Tuesday that legislative leaders notified the governor's office they were interested in making changes to the state's open records laws.
"In response, our staff provided input regarding these proposed changes," Walker spokeswoman Laurel Patrick said in an email. "Our intent with these changes was to encourage a deliberative process with state agencies in developing policy and legislation. This allows for robust debate with state agencies and public employees over the merit of policies and proposed initiatives as they are being formed, while ensuring materials related to final proposals, as well as information related to external stakeholders seeking to influence public policy, would remain fully transparent."
Asked whether he thinks the state's open records laws could benefit form changes, Erpenbach said he doesn't think it ever hurts to have a discussion — but that it should include members of the public, reporters, legal experts and other stakeholders.
"But at the same time, I think what we have in the law right now works, with the balancing test," Erpenbach said. "To do it the way they did it, without any public debate, without any input from the people who are affected by this was absolutely wrong. And to use the MacIver lawsuit as an excuse to do it is really pathetic."
Erpenbach said he's glad the changes are being removed from the budget, but that "doesn't make them a hero by any means, because they never should have done this in the first place."
Despite being introduced and passed at the start of a holiday weekend, the proposal sparked outrage among constituents, journalists and good government advocates. Opposition transcended party lines and Joint Finance member Rep. Dale Kooyenga, R-Brookfield, sent an email to his constituents on Tuesday apologizing for voting in favor of the changes.
Assembly Speaker Robin Vos, R-Rochester, said on Wisconsin Public Radio on Monday “almost all of us on the leadership team” had been on board with the proposed changes. He said there was “nothing sinister” about their intent.
“In my view, there should be some privacy for constituents to contact my office. You guys don’t give a (expletive) about that,” Joint Finance co-chair Rep. John Nygren, R-Marinette, told the Wisconsin State Journal on Monday. “All you want to do is make this about, somehow, that we’re stifling transparency for the press.”
Fitzgerald said he thinks the issue is broader and more complex than how it's been portrayed over the last few days.
He noted that Wisconsin's statutes governing public records haven't been revisited in a long time, and technology has evolved since they were last published in 1981.
"I think it’s something that there are many different entities that want to see if there’s something that can be done," Fitzgerald said. "So we’ll see if that happens in the future."
Patrick said the focus of Walker's office "remains on ensuring open and accountable government and we encourage public debate and discussion of any potential future changes to the state's open records law."