Tommy Washbush
Open government threatened in Wisconsin
As an advocate for transparency in government, I like to deploy the advice given to parents about their children: “Catch them being good.”
The Wisconsin Freedom of Information Council, which I’ve headed since 2004, regularly credits public officials with obeying and even honoring the state’s tradition of open government. We’ve given awards to former Gov. Scott Walker and former Attorney General Brad Schimel, both Republicans, as well as acknowledged the good deeds of Democratic Gov. Tony Evers.
But lately, there has been little to celebrate and much to lament. These are dark days for open government in Wisconsin.
Both Assembly Speaker Robin Vos and former Supreme Court Justice Michael Gableman have been cited for contempt of court for their mishandling of records requests regarding their costly ($1 million and counting) and thus far unsuccessful quest to uncover evidence of fraud in the 2020 election. Their open disregard for the state’s transparency laws is as unprecedented as it is unwelcome.
Gableman has admitted to deleting documents he considered irrelevant, even after the nonpartisan Wisconsin Legislative Council determined he was required to retain them. Besides finding Gableman in contempt, Dane County Circuit Judge Frank Remington referred him to the Office of Lawyer Regulation for possible disciplinary action for his “sneering” conduct during a court proceeding, which “destroyed any sense of decorum and irreparably damaged the public’s perception of the judicial process,” fining him $2,000 per day, which he is contesting.
And Vos, the architect of a 2015 attempt to largely exempt the Legislature from the open records law that was blocked due to public outcry, was found in contempt by Dane County Circuit Judge Valerie Bailey-Rihn, since retired. She has also ruled that Vos has violated the records law — for instance, by ignoring requests for six months that took one day to fulfill — and ordered him to pay the requester’s costs.
I think the public ought to demand that Vos and Gableman use their own money to pay for any penalties incurred (which already total $261,000), and not fob this off on the taxpayers they have already disserved.
Meanwhile, the Wisconsin Supreme Court, once a stalwart defender of the state’s transparency laws, has issued two rulings (and almost a third) that will do great harm to the cause of open government.
For decades in Wisconsin, requesters who receive records only after they sue were able to recover their legal costs and attorney fees, which can be considerable. But in Friends of Frame Park v. City of Waukesha, the court’s activist conservative majority, without any party in the case asking it to do so, decided there should be no recovery unless a judge orders or approves the records’ release, something that would not ordinarily happen in cases of belated “voluntary” compliance.
As Justice Jill Karofsky noted in dissent, this ruling “may disincentivize government actors from making timely disclosures, eviscerating the very purpose of the public records laws.” It also means fewer people will be willing to file lawsuits and fewer attorneys will take these cases on contingency — meaning they are paid only if they win — now that winning may no longer mean getting paid.
“Absent robust fee shifting,” Karofsky wrote, “the promise of our public records laws is rendered a dead letter for all but the select few with means, leading to fewer record requests, more delays in the release of information, and, ultimately, a less informed electorate.”
The losing party in this case has filed a motion for reconsideration and the conservative Wisconsin Institute for Law & Liberty is calling on the Legislature to promptly fix the problem that the court’s majority has created.
In the second case, the same court majority agreed that former state utility regulator Mike Huebsch need not turn over records of exchanges with utility executives that he claimed, without proof, were “purely personal.” Guess how often other public officials will now be making that same claim?
In a third case, the “swing” vote of Justice Brian Hagedorn prevented his fellow conservatives from making more bad law. Here the court narrowly rejected arguments by Wisconsin Manufacturers and Commerce, the state business lobby that spends heavily to elect conservative justices, against the Department of Health Services releasing the names of businesses with COVID-19 outbreaks.
This prompted a feverish dissent from Justice Annette Ziegler, who claimed this ruling “closes the courthouse doors to anyone who may wish to challenge the release of personal medical information.” Of course it does no such thing — the records sought do not identify individuals. But Ziegler was so peeved about not being able to deliver a win to WMC that she set out to frighten people into believing their medical privacy is now at risk.
Such bad faith was also on display recently in the court of Dane County Circuit Judge Ellen Berz, who barred the media from creating video or audio recordings of a recent high-profile criminal trial. Her decision deprived the public of its ability to see what happened in her court, including how she conducted herself as an elected public official.
The fact is, transparency makes for better government and even a better justice system. The more that government business is done in public, the more trust the public has in the process. That’s why support for open government often is and always should be a value shared by conservatives and liberals alike.
All of us need to come together to insist on greater fidelity to the ideal of open government, a linchpin of our democracy.
Bill Lueders is president of the Wisconsin Freedom of Information Council and the editor-at-large of The Progressive.
