Death of Wisconsin Transparency


Republicans on the Wisconsin Legislature’s powerful budget committee who approved sweeping changes to the state’s open records laws that would severely restrict access to the once-public records of elected officials refused to identify their colleague or colleagues who proposed the measure.

“It wasn’t my motion,” said committee co-chairwoman Sen. Alberta Darling, R-River Hills.

Pressed on who asked for the changes, both Darling and co-chairman Rep. John Nygren, R-Marinette, said there were “multiple requests.” Asked by reporters to give names, Darling walked away.

The Joint Finance Committee passed its “Motion #999” shortly after 9 p.m. on Thursday. That motion is traditionally full of wish-list items for legislators and special interests and often introduced and passed in the middle of the night or early in the morning.

Included in the 24-page motion were five sections of proposed changes to the state’s public records laws that would prevent the public from accessing nearly all records created by elected officials and their staff.

The changes were set to take effect on July 1, the day before the motion was passed and the first day of the new fiscal year.

“When you not just shut the door, but lock the door and throw away the key to the records we generate … we are inviting corruption,” said Sen. Jon Erpenbach, D-Middleton. “We are no longer an open government. This attacks the very spirit of who we are in this state.”

Erpenbach said the only explanation for the changes being slipped into the budget bill at the last minute is that “somebody in this building, somewhere, wants to hide something.”

Republican lawmakers on the committee who were asked for their opinions on the changes deflected and said it wasn’t their proposal.

The Capital Times has submitted an open records request for communications related to the changes. However, it’s unclear whether the request would be fulfilled under the new provisions.

“Don’t ask me,” Sen. Luther Olsen, R-Ripon, said when asked whether he thought the changes are good for Wisconsin. “I didn’t write it.”

Rep. Dean Knudson, R-Hudson, defended the changes, citing confusion over the difference between “drafts” and “notes” when developing legislation. He said the “hyperbole” regarding the changes was “overblown.”

“I think that this serves to clarify and make it easier for us all to stay on the right side of the law and the rules,” Knudson said.

The changes spurred unexpected alliances as liberals and conservatives united against what they view as an attack on transparency and open government.

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, Erpenbach said as much as he disagrees with MacIver, he will defend the organization’s right to sue him for records.

And MacIver president Brett Healy cheered him on.

“Bad, bad idea,” Healy said in an email. “The fact that the MacIver Institute and Sen. Erpenbach, opponents in an open records lawsuit and philosophical opposites, agree that these changes will be a death blow to open government shows you just how dangerous this is.”

Healy said Wisconsinites of all ideologies should be troubled by the committee’s actions.

“Taxpayers deserve an open and transparent government,” Healy said. “This is a huge step backwards.”

Wisconsin Freedom of Information Council president Bill Lueders called the proposals a “very serious full-frontal assault on the state’s traditions of open government.” And Rep. Chris Taylor, D-Madison, called it the “biggest attempt to subterfuge open records and sunshine laws” of any legislature in the country.

An attorney with the Legislative Reference Bureau confirmed that no other states have laws like one of the provisions, which would create a broad “legislator disclosure privilege.”

“If you don’t want people to know what you’re doing, don’t run for public office,” Taylor said.

Lueders called for Gov. Scott Walker to use his line-item veto to undo the changes.

“It’s a very disturbing and cowardly action that guts the open records law with regard to the Legislature itself,” Lueders said. “And to do it in this fashion, as a last-minute budget provision — I would hope that people are absolutely outraged by this.”

A spokeswoman for Walker said he will review the budget in its entirety when it reaches his desk, but did not say whether he plans to approve or veto the open records changes.

Rep. Gordon Hintz, D-Oshkosh, cited several occasions when legislative drafting records have revealed information about the influence of or changes made to bills.

Drafting records have been used frequently by journalists to gain insight into the process by which legislation is created, influenced and passed.

In January 2014, the Wisconsin State Journal used drafting records to report that a controversial bill to allow high-income parents to avoid paying tens of thousands of dollars a year in child support was written with the help of a wealthy donor to the bill’s author, Rep. Joel Kleefisch, R-Oconomowoc.

Drafting records showed in February that the University of Wisconsin had objected to a proposal in Gov. Scott Walker’s budget to scrap the “Wisconsin Idea” from the UW’s statutory mission statement.

The liberal group One Wisconsin Now, which frequently requests legislative records, said it takes the move as “validation of our effectiveness and proof that the lawless Republican machine running state government will do anything to try and stop us from holding it accountable.”

The organization successfully sued Darling for records related to correspondence with a voucher school lobbyist in 2011.

OWN executive director Scot Ross offered the following as additional examples:

  • In 2013, drafting records showed that mining company Gogebic Taconite had been heavily involved in modifications to legislation that would benefit the company related to an open pit mine in northern Wisconsin.
  • A school choice lobbyist was heavily involved with writing legislation designed to impose new accountability requirements on schools participating in the state’s voucher program in 2014, according to drafting records.
  • A review of drafting records for a proposed 20-week abortion ban showed that it originally included language relating to the health of the mother that was later removed, then added once again as an amendment.

“You close the door on open government, and I guarantee you — I guarantee you, legislators knowingly and unknowingly will break the law and will never be caught,” Erpenbach said.

Last month, Republican Attorney General Brad Schimel launched an Office of Open Government in an effort to increase openness and transparency with regard to government records.

Asked by Erpenbach whether Schimel had seen or signed off on the committee’s changes, Nygren said, “I can’t speak to that.”

“Transparency is the cornerstone of democracy and the provisions in the Budget Bill limiting access to public records move Wisconsin in the wrong direction,” Schimel said in an email on Friday.

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