Early in his administration, Wisconsin Gov. Tony Evers was asked to produce a letter he’d gotten from departing Gov. Scott Walker, during the transition. He initially refused, claiming it was a “purely personal” communication outside of the reach of the state’s open records law.
Perhaps no other political issue receives so little attention, relative to its importance, as open government. Elections come and go without candidates addressing this fundamental tenet of a democratic society. That’s because virtually all candidates, when asked, will say they are big fans of transparency. It’s an easy position to take, a harder one to live up to. But in Wisconsin’s fall elections, fidelity to open government has come up in several races, for governor, attorney general and U.S. Senate.
One great thing about Wisconsin’s open records law is that it’s not supposed to matter who wants records or why. The law, enacted in 1983, asserts that no state or local government office may deny a request because the person making it “is unwilling to be identified or to state the purpose of the request.”
This is an important principle, because access to public information should not be limited to people whose motives have been deemed pure. In fact, citizens and political parties often use the law to scrutinize public officials and political opponents. That’s how it should be. A few years back, the primary author of Wisconsin’s open records law, former state Sen. Lynn Adelman, now a federal judge, told a group of open government advocates that he was prepared to kill the entire bill rather than accept an amendment that would have removed this ability to make anonymous requests.
Not long ago, I asked Wisconsin Assembly Speaker Robin Vos (R-Rochester) for records regarding a controversial bill he helped author on free-speech rights at state universities. I had already obtained some communications between Vos aide Alicia Schweitzer and the Legislative Reference Bureau, from the bill-drafting file. They showed that his office had added bill language calling on UW-System schools to punish “indecent, profane, boisterous (or) obscene” conduct that interfered with others’ free speech. The LRB bill drafter, Mark Kunkel, deleted these terms, saying they were overly broad and ambiguous. But Schweitzer insisted that they be restored.
On Sunday, August 14, after a night of unrest prompted by the fatal police shooting of a black man, Milwaukee Police Chief Ed Flynn said his review of body camera video of the incident proved the officer had acted appropriately. “The individual did turn toward the officer with a firearm in his hand,” Flynn stated, later saying the man, 23-year-old Sylville Smith, “was raising up with” the gun. Milwaukee Mayor Tom Barrett said a still photo he was shown from the video “demonstrates, without question, that (Smith) had a gun in his hand.” In fact, Barrett declared, the officer “ordered that individual to drop his gun, the individual did not drop his gun.”
This purportedly exculpatory video itself was not promptly released, despite requests from Barrett and Wisconsin Gov. Scott Walker that this occur. It still has not been released. But we know now that public officials did not give an accurate account of what it shows.
Last year on July 2, the state Legislature launched a sneak attack on Wisconsin’s open records law, effectively seeking to exempt legislators from its reach. That effort died following a huge public backlash. But some lawmakers, it’s clear, remain actively hostile to the state’s tradition of open government.
A provision snuck into the state budget bill by the Legislature’s Joint Finance Committee would deal a significant blow to open government in Wisconsin. The provision, part of an omnibus motion of changes affecting the University of Wisconsin System, would exempt universities from the rule in place for all other state agencies regarding the naming of finalists for key positions. No longer would they need to identify the five most qualified applicants, or each applicant if there are fewer than five.
Conservative commentators have embraced the narrative put forth by critics of the two John Doe probes involving Walker and others. Wisconsin is being defamed as a place where unethical law enforcers driven by naked political partisanship have run amok.