Legislative Republicans on Thursday passed sweeping changes to the state’s open records law that would dramatically curtail the kind of information available to the public about the work that public officials do.
The proposal blocks the public from reviewing nearly all records created by lawmakers, state and local officials or their aides, including electronic communications and the drafting files of legislation. The language was included in the final version of the state’s 2015-17 budget, which passed the Legislature’s budget committee on a party-line vote late Thursday. The budget bill next goes to the full Assembly and Senate.
“This is the single most sweeping and outrageous affront to Wisconsin’s tradition of open government that I have seen in my quarter-century of involvement with the (Wisconsin) Freedom of Information Council,” council president Bill Lueders said.
One provision creating a broad “legislator disclosure privilege” has no counterpart in any other state, a spokesperson for the nonpartisan Legislative Reference Bureau testified.
Despite voting for the motion, Republican members of the panel all professed not to know who proposed the public-records changes. Joint Finance Committee co-chairman Rep. John Nygren, R-Marinette, refused to answer a State Journal reporter when asked which lawmakers requested them.
Speaking after the measure passed the committee, its other co-chairperson, Sen. Alberta Darling, R-River Hills, distanced herself from the measure she and Nygren allowed to come forward.
“It wasn’t my motion, and it’s here as part of a package that came from other members,” Darling said. When asked who those members were, Darling said only that the request had come from multiple sources, then walked away.
Democrats on the panel railed against the changes.
“Deals will be done in secret,” said Sen. Jon Erpenbach, D-Middleton. “Corruption will happen. And nobody’s going to know about it.”
Critics said the change would make it impossible for voters to know whether special interests are writing legislation.
“It’s in the cloak of darkness that you want more darkness,” said Rep. Chris Taylor, D-Madison.
Budget committee member Sen. Luther Olsen, R-Ripon, said he didn’t seek the changes and isn’t sure who did. “I honestly don’t need (the changes) for my purposes,” he said. “We have nothing to hide.”
Olsen said lawmakers have previously raised concerns about whether communication between lawmakers and constituents should be public.
But GOP Rep. Dean Knudson of Hudson said the changes clarify what is a record for lawmakers and would “make it easier for us all to stay on the right side (of the laws).”
Gov. Scott Walker’s spokeswoman, Laurel Patrick, wouldn’t say whether the governor would support or veto the measure.
The so-called “999 motion” included numerous items that the leaders of the budget committee proposed to add to the budget with limited public scrutiny. Unlike most budget proposals, the motion is written in a way that prevents the public from knowing which lawmaker suggested which changes.
‘Dark day for Wisconsin’
Lueders said lawmakers seeking the changes were “cowardly” to propose them as part of a large package of changes to the state budget a day before a holiday weekend.
“If Wisconsin wants to take a giant leap into corruption, I think that’s a good move for them to make,” Lueders said. “It’s cowardly. It’s dirty. It violates the tradition of the state of Wisconsin, and it shows what miserable cowards that these people are that they would stick this in an omnibus motion.”
Lueders said the proposal could be in response to news organizations including the State Journal using the open records law to reveal that Gov. Scott Walker’s initial budget pushed for removal of language embodying “the Wisconsin Idea” — the University of Wisconsin System’s mission statement — from state law despite opposition from state higher education leaders.
Lueders also cited a 2014 State Journal examination of legislative drafting files that showed Rep. Joel Kleefisch, R-Oconomowoc, helped write a bill that could have significantly reduced a wealthy, divorced donor’s child-support payments. A State Journal article this spring also used the records law to examine proposals, known as “term papers,” that new lawmakers were offering to Assembly Speaker Robin Vos, R-Rochester.
“They’ve been embarrassed by too much that has come out,” Lueders said.
Erpenbach said if the changes pass, “we don’t need an open records law anymore.”
Erpenbach was sued himself by the conservative MacIver Institute for withholding names of people who contacted him. But Erpenbach said that, while he withheld the names, he was happy to provide the contents of the emails. Those would become secret under this motion, he said.
“I think this is a dark day for Wisconsin government,” said Brett Healy, president of the MacIver Institute. “This appears to be a huge step backwards for transparency. Taxpayers deserve more transparency, not less, and the insertion of this language at this late date in the budget process is really disheartening for those who value open government.”
While it was Healy’s organization that sued Erpenbach over the open records issue, he said, “we’re with Sen. Erpenbach on this one. This is a bad idea.”
Under the motion, records and correspondence of any officer or employee of the state Legislature or legislative service agency would not be considered public record.
Change in definition
The definition of public records would change, too, by exempting “deliberative materials” from the public’s view.
Deliberative materials are defined in the motion as “communications and other materials, including opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, and notes, created or prepared in the process of reaching a decision concerning a policy or course of action” or in preparing a draft of a document.
The motion also gives a legislator a “legal privilege” or right to refuse to disclose and to prevent a current or former staff member from disclosing a wide array of types of communication that occurred during the lawmaker’s term in office.
In another proposal, the Legislative Reference Bureau would be required to keep all drafting files for legislation confidential. The LRB would no longer be required to maintain and house the drafting records of legislation introduced in prior legislative sessions and use such records to provide information about legislative intent when questions arise about a particular law. Currently, the public can examine drafting files for bills after they have been introduced.
The motion also eliminates the requirement that the LRB maintain all drafting files for legislation during the current legislative session and release those files for public view once the Legislature adjourns.
Orville Seymer, an open records specialist with the conservative Milwaukee-based organization Citizens for Responsible Government, said the proposals “are just terrible.”
“These are the public’s records — that’s the idea,” Seymer said. “We allow them to keep the records in good condition, but these are really the public’s records and they’re trying to say we can’t see them? I strongly, strongly disagree.”