Is this the beginning of the end for the public’s right to an open government?
Even now, months afterward, I’m still a bit shocked – and worried about what yet may come.
It began for me with a call from a reporter late in the afternoon of Thursday, July 2. I was traveling from my Madison home to a family event in the Milwaukee area. Thankfully, I was not behind the wheel.
The reporter said the Wisconsin Legislature’s Joint Committee on Finance had just unveiled an omnibus motion that included changes to the state’s open records law. She was contacting me, as would dozens of other reporters over the next several days, in my capacity as president of the Wisconsin Freedom of Information Council, which is devoted to protecting open government.
She read the proposed changes, one by one. “Please don’t tell me there’s more,” I kept saying. There was more.
The changes, sprung on the cusp of this holiday weekend, would gut the state’s open records law as it pertained to the Legislature, and undermine it for other units of state and local government.
All communications between legislators and their staffs would be protected. The drafting files of introduced bills (showing who had a hand in crafting legislation) would no longer be public. The Legislature could shield any record simply by passing a rule or policy.
Finally, the changes would shut down access to all “deliberative materials” created for the purpose of making law or public policy – including opinions, analyses and briefings prepared at public expense. This vast new exemption would apply to all units of government, from the governor’s office to the local school board.
The changes were as sweeping as they were radical. “I honestly don’t know what communication would not be subject to this privilege,” said an exasperated state Rep. Chris Taylor (D-Madison), a committee member, in the few minutes of debate permitted before the motion came up for a vote. “What isn’t subject to the broad confidentiality that you’re establishing for yourself?”
Taylor, whose comments I listened to on WisconsinEye during my return trip to Madison, was withering. “If you don’t want people to know what you’re doing, don’t run for public office,” she chided her colleagues. “Do something else. There’s a whole lotta things you could do.”
But the objections of Taylor and other Democrats made no difference. The motion passed on a party-line vote of 12-4, with all Republicans in favor. They were prepared to take a little heat.
What they were not prepared for was what happened.
Across Wisconsin, people reacted with alarm. State Sen. Rob Cowles (R-Green Bay) was “shocked and appalled” by this “assault on democracy,” vowing to not back any budget that included it. Wisconsin’s Republican Attorney General Brad Schimel said the changes would “move Wisconsin in the wrong direction.”
Newspapers and broadcast media mobilized in opposition. The Milwaukee Journal Sentinel printed a front-page editorial on July 4, saying any legislator who votes for “such broad limits on the public’s right to know is not fit to hold office.”
The conservative Wisconsin Institute for Law & Liberty and the MacIver Institute issued a joint statement opposing the changes. Hundreds of angry emails flooded into the offices of the Republican lawmakers, some respectful, some profane.
By midafternoon on Saturday, July 4, Gov. Scott Walker and Republican legislative leaders announced plans to ax these changes. They called for a Legislative Council committee to study the issue further. The Wisconsin State Journal promptly editorialized against this, saying, “A better solution is to bury these bad ideas once and for all.”
That’s the right advice, but I fear it will go unheeded. All signs indicate there will be fresh attempts to curtail records access. Lawmakers will push for modest exemptions that, if broadly interpreted, as all exemptions are, would have major impacts. These will include curbs on information about who is contacting lawmakers.
“In my view, there should be some privacy for constituents to contact my office,” state Rep. John Nygren (R-Marinette), co-chair of the Joint Committee on Finance, told the State Journal. “You guys don’t give a s— about that.”
Yet Nygren has elsewhere provided strong reason to oppose letting lawmakers hide information about those who contact them. In 2011, he claimed he sponsored a change in state auto insurance law in response to contacts from constituents. When the Wisconsin Center for Investigative Journalism asked for records of these contacts, Nygren blacked out names, purportedly to protect the senders from “harassment, reprisal, identity theft, etc.” He relented after the center’s lawyer got involved, and it came to light that at least two-thirds of those contacting him were insurance agents or industry employees.
As the open records controversy erupted, and before the decision to backpedal on it was made, Republicans sent out a list of “Talking Points” to help sell these bad ideas. Lawmakers were urged to claim that secrecy was needed to protect constituents from the “fear of reprisal from political foes.”
It is pure fantasy to say people who contact lawmakers routinely face “reprisal” for their gumption. And existing law allows for names and other information to be redacted in any situation where the lawmaker can identify a good reason for doing so. What the backers of these changes want is the ability to withhold information whether or not they have a good reason, or any reason at all.
I obtained the “Talking Points” memo from Nygren through an open records request. His office ignored my first two requests and complied only after I threatened to sue. Nygren then provided 39 pages that didn’t answer my question about the origin of the proposed changes with a terse note saying he “considers this matter closed.”
It has come out through other records releases that Assembly Speaker Robin Vos (R-Rochester) requested these changes, and the office of Gov. Walker, who called them “a huge mistake” that “didn’t come from us,” was involved in drafting the exemption for “deliberative materials.”
Walker’s administration has already been asserting that deliberative process materials are exempt under current law, over which it is now being sued, by the Center for Media and Democracy and The Progressive magazine (my employer). The governor’s enmity to the idea of transparency in these critical communications is a matter of, well, public record.
And it recently came to light (via an open records request) that, several weeks after the controversy, Vos ordered the drafting of a bill that would allow the Legislature to make its own rules regarding records access. This proposed change, which Vos said was meant as a prelude for the upcoming Legislative Council committee, would allow lawmakers to obtain all of the freedom from accountability they sought before.
These developments undercut my general opinion of politicians, based on my work as a journalist and advocate for open government. I often tell audiences and readers that most elected officials are honorable people, despite the awful things they say about each other.
I say Wisconsin’s long tradition of open government – we have perhaps the nation’s first public records law, passed in 1849, a year after statehood – survives and thrives because officials here recognize a responsibility to conduct the public’s business in public. Openness, I argue, serves the interests of government officials as well as the people they represent. The more sunlight into what they do and how they do it, the better they look.
Now I question those assumptions. The politicians who put this into the budget, and who still hope to shroud their own activities, did not behave honorably. They do not rail against what they feel is an intolerable amount of scrutiny to make government work better. They just want to make it easier for them to betray the public’s trust.
I think state Rep. Taylor is right. Maybe they are in the wrong line of work and should do something else. There’s a whole lotta things they could do.