Photo by D Michael Burns
Facing an intense public backlash, Wisconsin Gov. Scott Walker and top legislative leaders have backed down from an effort to impose controversial limits on the state’s open records law, including a provision to exempt records used during the “deliberative process” of drafting law or policy.
But a review by the Wisconsin Center for Investigative Journalism shows similarities between the proposed language, which was inserted into the budget by GOP lawmakers on Thursday, and that used by Walker and others in denying recent records requests. One of those denials led to a lawsuit involving The Progressive magazine.
“After substantive discussion over the last day, we have agreed that the provisions relating to any changes in the state's open records law will be removed from the budget in its entirety,” Walker and four top Republican legislative leaders declared in a statement issued July 4. But they are not giving up: The statement called for a legislative study group to look into the issue.
The last-minute changes to the 2015-17 budget were made by the Legislature’s Joint Finance Committee and approved on a 12-4 party-line vote with no public input. They were decried by Wisconsin’s Republican attorney general and conservative and liberal groups dedicated to government transparency.
Republican legislative leaders have refused to say who is behind the changes, which would have kept vast categories of state and local government documents secret. Walker’s office has refused to reveal the extent of its involvement.
Under the measure, documents used during the “deliberative process” by the governor, lawmakers and other state and local government officials would be exempt from public disclosure. Those would include opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, as well as “notes created or prepared in the process of reaching a decision concerning a policy or course of action.”
Walker and his Department of Administration recently invoked a “deliberative process privilege” argument in denying requests for records documenting the proposed removal of the Wisconsin Idea and the “search for truth” from the University of Wisconsin’s mission statement.
These denial led to two lawsuits. The first suit was filed May 19 by the Madison-based Center for Media and Democracy. The second suit, filed May 27, was brought by The Progressive, columnist Jud Lounsbury, and his wife, Katy Lounsbury, a labor attorney.
The two suits have been consolidated into a single case, now pending in Dane County Circuit Court.
Brendan Fischer, general counsel for the Center for Media and Democracy, noted the similarities between Walker’s denial of his organization’s request for records related to the UW’s mission statement and the controversial open-records changes, adding that these “seem like more than coincidence.”
Jud Lounsbury agreed.
"Governor Walker's office acted outside Wisconsin's open records law in denying our basic request to see communications that were behind removing the ‘Wisconsin Idea’ from our statutes,” Lounsbury wrote in an email. “So we took them to court. Instead of following the law, they've decided to change the law."
The Walker Administration also cited the deliberative process exemption in denying a Wisconsin man access to records about Walker’s controversial proposal to eliminate a program that allows disabled individuals to use state money to pay for self-directed care. Lawmakers have since altered the program, but disability advocates remain opposed to the changes.
Attorney Christa Westerberg, vice president of the Wisconsin Freedom of Information Council, called the Walker administration’s citing of this exemption in these recent cases “an unprecedented attempt to conceal decision-making documents about important issues in the budget.”
The nonprofit Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication.