Where were the legislators?
Looking around the conference room in Madison last week, it seemed to me there was only one group missing from the open government summit put on by Attorney General Brad Schimel: Where were the legislators? Where were the lawmakers who, more than most, need to have a better understanding of how open government laws should work.
State officials from other offices, such as the Legislative Council and the Public Service Commission and obviously the Department of Justice were there. Representatives of county and local governments were there, as were representatives of citizen groups and media organizations. Attorneys who work on these issues were there in abundance. All told, about 200 people were in attendance; kudos to Schimel for holding the summit and for starting this conversation.
But where were Assembly Speaker Robin Vos (R-Rochester) or Senate Majority Leader Scott Fitzgerald (R-Juneau) or Sen. Alberta Darling (R-River Hills) or any of the 12 Republicans in the Joint Finance Committee who moved to gut the state’s open records law on the Fourth of July weekend? For that matter where were Assembly Minority Leader Peter Barca (D-Kenosha) or Sen. Chris Larson (D-Milwaukee) or Senate Minority Leader Sen. Jennifer Shilling (D-La Crosse)? Democrats need to hear the open government message no less than Republicans do.
What they would have heard is that in general, the state’s open government and open records laws work well. Yes, there are some issues that need to be explored and better defined, especially in this digital age when emails and text messaging have become ubiquitous, and when police body cameras can provide graphic and privacy-invading records. There were some fascinating discussions among the panelists and the crowd last week.
But legislators also would have heard some things they might not like.
As Schimel noted, “Messing with open government laws is like touching the third rail. “I think that lesson has been learned recently.”
And as the Journal Sentinel’s Patrick Marley noted in an article last week, several panelists at the summit expressed doubt at the notion that records could be withheld because they were deliberative, as Walker’s administration has claimed in a dozen instances this year.
“My own view is that there isn’t a deliberative process privilege that’s available,” said Raymond Taffora, the vice chancellor for legal affairs at the University of Wisconsin-Madison. Taffora was formerly the top deputy to Republican Attorney General J.B. Van Hollen and chief counsel to GOP Gov. Tommy Thompson.
Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty, said he did not favor withholding deliberative records because the move appeared to be an attempt to prevent “political embarrassment.”
Esenberg is on the money: The move to gut the open records law last month was not motivated by a desire to protect citizen privacy or deal with issues related to digital records. It was to protect Walker and other politicians from embarrassment over issues such as removing The Wisconsin Idea from the mission of the University of Wisconsin System.
But the strongest message last week might have come from attorney Robert Dreps, who is a member of the Wisconsin Freedom of Information and has done work on open government issues for the Journal Sentinel.
While acknowledging that some tweaks may be a good idea here and there, “I would not rush the process.” Why not? Because, he said, this Legislature can’t be trusted to make any changes to the laws, not after the attempt to gut the open records law. Let them face the voters in 2016 first.
I think Dreps, like Esenberg, was right on the money. How can voters trust lawmakers who don’t believe in transparency and open government to make even slight changes? By all means, continue the discussion but hold off on any tweaks until there are enough lawmakers who can be trusted to protect the public’s interests.