Wisconsin Governor Scott Walker again found himself on the opposite side of transparency advocates after admitting to an attempt to sneak in language to a late night omnibus motion to substantially limit the Wisconsin open-records law.
As many prepared to celebrate the upcoming 4th of July holiday, Walker and the Republican members of the Joint Finance Committee voted to include a measure that would exempt nearly all communications between elected officials from the public record and close the door on transparency between citizens and the government.
“They did this right before independence day, which was so undemocratic,” said Christa Westerberg, of the Wisconsin Freedom of Information Council. “All the stuff that gets dumped into the budget at the last minute doesn’t go through the normal process for legislation,” she added.
Despite a previous published draft of the budget bill and several open discussions both with no inclusion of changes to the open-records law, the Joint Finance Committee passed the motion in a 12-4 party-line vote in a session closed to the public.
“I think they were hoping that nobody would notice because of the timing,” said Westerberg, who said she was surprised to see such a drastic policy change take form at 9pm the night before a federal holiday.
The draft included language that would have redefined open records under Wisconsin Law. Specifically, it would have created a “deliberative materials” exemption which would exclude, “opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, and notes,” from the public record.
Despite the rushed timing and festivities of the holiday weekend, roars of criticism came from both Republicans and Democrats.
“Transparency is the cornerstone of democracy and the provisions in the Budget Bill limiting access to public records move Wisconsin in the wrong direction,” Republican Attorney General Brad Schimel said in a statement. Schimel is the lead government official responsible for open records issues in Wisconsin.
With criticism mounting, Walker, joined by State Senate Majority Leader Scott Fitzgerald (R), Assembly Speaker Robin Vos (R) and the co-chairs of the state’s joint budget committee, reversed course and released a statement removing their proposal entirely.
And despite the initial proposal being described by Westerberg as “obstructing transparency in an extremely broad way,” the joint statement released by Walker, Fitzgerald, and Vos stated that they “never intended to inhibit transparency in government in any way.”
However, while Walker removed the changes to the open-records law from the budget, he still refuses to release records that he deems to be part of his office’s internal deliberations — exact what he was attempting to sneak into the budget.
“Walker has been acting as if this deliberative process exemption already exists in Wisconsin law. At least as far back as May, his office has been denying public records requests based on this claim ‘deliberative process’ exemption,” Brendan Fischer, general counsel for the Center for Media and Democracy said.
“Clearly the deliberative process issue has been on the governor’s radar and his administration’s radar for the past couple of months,” Westerberg added. “It seems to me that there is a cause and effect relationship with them trying to insert this deliberative process privilege in litigation as a defense to an open records lawsuit and then putting it into the budget.”
The lawsuit Westerberg is referring to is Center for Media and Democracy v. Walker. In February, Walker denied the release of records connected to his proposal to delete the Wisconsin Idea from state law.
The Wisconsin Idea, which was created in 1904, is the mission statement for the University of Wisconsin, which states that the university system should strive to “extend knowledge and its application beyond the boundaries of its campuses and to serve and stimulate society.”
“The Wisconsin Idea is something that is a legacy of the progressive era in Wisconsin in respect to the idea that the university system is supposed to play a role in the state outside of the walls of the university, so that’s everything from helping the agriculture industry to influencing policy,” Fischer explains.
Once public documents revealed that Walker’s staff was responsible for striking out several lines about public service in the state budget’s description of the public university and replacing them with mentions of economic development, criticism and questions for his motives behind the changes ensued.
When asked why he believed Walker proposed the changes to the Wisconsin Idea, Fischer said, “That’s what we would like to know and that’s what a lot of people in Wisconsin would like to know and that’s why we [The Center for Media and Democracy] filed the lawsuit.”
“Generally speaking I have suspicions as to what their motives might have been,” Fischer said. “One would be working the university away from having a public role in the state’s broader political infrastructure. It appears that they do not like the idea of an academic public institution having an influence on public policy.”
And again, after a proposed policy change by Walker was criticized he removed the changes and claimed that he never intended to meaningfully change the Wisconsin Idea.
“The Wisconsin Idea will continue to thrive. The final version of budget will fix drafting error — Mission statement will include WI Idea,” Walker posted on his twitter account on Feb. 4, 2015, calling the changes to the Wisconsin Idea a “drafting error”.
Fischer pointed out the similarities in the Wisconsin Idea case and the controversy over the Fourth of July weekend with the attempts to change the open-records law. He said both instances point to Walker’s overall rocky relationship with the idea of government transparency.
“That has certainly been a pattern throughout his career. Looking back at this — the attempt of the elimination of the Wisconsin Idea — part of the reason that that resulted in such a political firestorm was because the strong Wisconsin public records law revealed that Walker was misleading in his public statements about the records.”
Although Walker actually admitted this time to drafting the changes to the open-records law, the fight over its future is not over. The joint statement removing the changes to the public records law in the budget left the door open for future changes.
“In order to allow for further debate on this issue outside of budget process, the Legislature will form a Legislative Council committee to more appropriately study it and allow for public discussion and input,” the statement concluded.
Openness advocates are not happy with that statement.
“Nobody is calling for changes to the public records law except elected officials who want their operations secret,” Fischer said. “I think it is very concerning that elected officials are trying to narrow public access to documents which the public has a right to see.”
Westerberg said that Wisconsin politicians want to tighten the public records laws in order to protect political constituents. However, she does not believe that changes are necessary in a records law that has remained unchanged since 1981.
“We have survived in this state for many years without this exemption and people have been able to figure it out, so that [deliberative materials exemption] just seems silly to me and it just protects finding out what the real reasons for the changes to these policies might be,” Westerberg said.
Both Fischer and Westerberg hoped the media would continue their coverage of the issue in order to continue to protect the Wisconsin open-records law.
“We [Wisconsin] have a strong tradition of openness and transparency and we shouldn’t change that just because the governor is running for president,” Fischer said.