Wisconsin Legislators Trying To Carve Hole In Open Records Law With Amendments To State Budget Bill

from the stupid-nosy-public dept

No one ever praised politics as a germ-free environment, but Wisconsin may be taking it to new levels, aiming for Chicago-esque levels of dirty politics. The state appears to have several people in positions of power operating in purely partisan self-interest, leading to governmental abuses.

For years now, Milwaukee County District Attorney John Chisholm has ostensibly been in the process of investigating the embezzlement of $11,000 from the local Order of the Purple Heart. This investigation has taken the form of a "John Doe" investigation, which couples broad daylight raids on people's homes and businesses with draconian gag orders and a pile of sealed documents.

John Doe investigations alter typical criminal procedure in two important ways: First, they remove grand juries from the investigative process, replacing the ordinary citizens of a grand jury with a supervising judge. Second, they can include strict secrecy requirements not just on the prosecution but also on the targets of the investigation. In practice, this means that, while the prosecution cannot make public comments about the investigation, it can take public actions indicating criminal suspicion (such as raiding businesses and homes in full view of the community) while preventing the targets of the raids from defending against or even discussing the prosecution’s claims.

These raids have been ongoing since 2010, but you won't read much reporting on it because those being raided are forbidden to discuss anything that has occurred. It's a wholly autonomous process that can be initiated by one party, which then controls the narrative from that point forward. It's completely at odds with due process, and in this case, appears to be wholly politically-motivated. John Chisholm is a Democrat. His targets have all been Republicans/conservatives.

Not that the conservative side is necessarily any better. Wisconsin Republicans are also in favor of government secrecy. Some "fixes" of the state's open records laws were added to the state's budget bill, carving out a sizable -- and easily abusable -- exception for a variety of government documents. (via Metafilter)

Under the provision, all "deliberative materials" would be exempt from the open records law. That includes all materials prepared in the process of reaching a decision concerning a policy or course of action or in drafting a document or communication.

The exemptions are even more extensive for members of the Legislature and their staff. They would not have to disclose communications between one another, the public or others who work for the Legislature, such as staff in the clerk's and sergeant at arms offices. The protection extends to a wide array of legislative business, including drafting bills, developing public policy, all aspects of legislative proceedings such as committee hearings, and investigations and oversight.

Legislative service agencies would be required to keep all communications, records and information confidential.

It's not just the legislature in line for additional open records exemptions. The amendment could expand this "coverage" to all government agencies, all the way down to school boards. This change was backed by Governor Scott Walker and leading Republicans. Walker has had his own "problems" with open records requests, which have resulted in "recent embarrassing stories." Now that the backlash has begun, even those who voted for it are now claiming it goes too far.

State Rep. Dale Kooyenga (R-Brookfield), who voted for the motion, said he is now concerned about its impact.

"The scope of the provision appears to go beyond what I was briefed on, and further consideration of the matter is warranted and welcome," Kooyenga said. "I'll be listening to feedback."

Because no one reads the stuff they vote for, much less performs any due diligence.

"No comment," [Sen. Tom] Tiffany said when asked if he supported the open records changes shortly before he voted for them.

Similarly, moments before he sat down for debate on the provisions, [Sen. Michael] Schraa demurred on whether he would back them.

"I have to read through it more," he said before casting his yes vote.

Just before voting for the measure, [Sen. Howard] Marklein said he had no idea who sought the change and didn't know if he could support it.

"I don't know yet," he said. "I'll know when I vote."

So, how does a shady remix of the state's open records law end up on the governor's desk if no one seems all that thrilled/knowledgeable about it? Because voting with hearts/minds is way less popular than voting along party lines. The committee voting on the budget amendments included four Democrats and 12 Republicans. All Democrats voted against it. Every Republican voted for it.

Now that the backlash has begun, Governor Walker's office is claiming it will "work with legislators" to fix the amendment. Notably, the office has not indicated Walker will veto the amendment, which would be a much better "fix" than working secretively with amenable legislators to keep as much of the broad expansion intact.

The government -- at all levels -- will trend toward increased opacity if not properly held in check. Legislators, given the opportunity, will introduce legislation that best benefits legislators. On the plus side, thanks to the internet's near-instant access and a variety of non-mainstream news sources, citizens are more informed than ever. This obviously presents a "problem" for government entities who prefer darkness. An amendment appended to a budget bill presented the Wisconsin government with an opportunity to lock the public out of its sausage-making, but the speedy spread of negative coverage has ensured it won't pass unnoticed... or unopposed.

Filed Under: deliberative motions, john chisholm, open records, state budget, wisconsin