March: Silent treatment: Denials were worse than refusals

2006 Columns

About five years ago, Wisconsin State Journal reporter Dee Hall  wrote to the heads of the four partisan caucus offices then in operation in Wisconsin asking to see all the photos and graphics they had produced the previous year.

Hall was acting on a tip that the taxpayer-funded offices, established to provide legislators with extra staff for policy research and analysis, became full-fledged campaign machines in election years.

Her request under the state’s Open Records Law should have substantiated that tip, since much of the alleged help came in the form of campaign literature, yard signs and other campaign freebies prepared by graphic artists at the caucuses.

What she got were piles of legislative issue briefs, budget analyses, summaries of committee testimony and official photographs of lawmakers in action.

“No campaign activity here!” the documents fairly screamed — something the world now knows is a lie.

While blocking the release of sensitive documents remains one of the biggest obstacles the media and the public face in trying to learn what our government is doing, denying the existence of documents represents an even more insidious abuse of the law.

Aside from hoodwinking the public, such denials leave the requestor with no legal recourse like a standard refusal letter does. Unless you have an inside source who can prove records are being withheld, a person has no grounds to take the case to court.

Instead, Hall and I were left to repeat and hone our requests in a game that felt more like “20 Questions,” all to no avail.

But people, especially former caucus staffers, talk, and some of them had documents — lots of them. In May 2001, the State Journal published a series of stories describing this hidden form of public financing for legislative leaders’ hand-picked candidates.

After our series ran, and figuring the jig was up, I made a new round of requests. This time I asked for “all campaign material” produced by the caucuses over the previous year.

I took the extra step of copying the letters to Dane County District Attorney Brian Blanchard in the hope that would cause the recipients to take them more seriously. It did not.

“To the best of my knowledge, any such information has been and is properly maintained at other locations — such as the office of the Senate Democratic Campaign Committee located on non-state property and maintained without state funds,” read a typical denial from Jon Carson, then director of the Senate Democratic Caucus.

From Brian Fraley, then director of the Senate Republican Caucus: “To the best of my knowledge and that of my staff, this office does not maintain, nor do we have in our custody, any of the documents you have requested.”

“The Assembly Democratic Caucus does not have any material that fits the description of your request,” wrote the former director of that caucus, Rich Judge.

And this, from Jason Kratochwill, then director of the Assembly Republican Caucus: “No such records have been created or are being kept by Caucus staff that are responsive to this request.”

The responses are laughable today, with four former lawmakers — and current Rep. Scott Jensen — now convicted of using caucus staff to run private campaigns and many other legislators and staffers testifying under oath such conduct at the caucuses was rampant.

But it took five years and the subpoena power of Blanchard and former Milwaukee County District Attorney E. Michael McCann to pry loose the public records to prove it.

At the trial for former Assembly Speaker Scott Jensen and former legislative aide Sherry Schultz, Kratochwill maintained he complied with Dee’s original records requests “as far as I was concerned, with how that request was worded,” and with all the State Journal’s subsequent requests.

I later asked Kratochwill how he had arrived at that conclusion, given that he eventually turned over 18 boxes of documents, many of them clearly campaign material, to prosecutors.

Kratochwill said he had spoken with the Legislature’s attorneys, who had “agreed that, the way it (the request) was phrased, ‘Assembly Republican Caucus’ capitalized, that it was a request for the official graphics, etc., of the state Assembly Republican Caucus in its official capacity.”

I’m just guessing here, but I doubt we would have had better luck had we asked for “all campaign material secretly produced by the ‘assembly republican caucus.’”

When records custodians say they don’t have records “responsive” to a request, that’s often code for: We do have records, and you can probably get them if you ask in the right way, but we’re not going to help you with that.

“On the other side, I’ve seen records custodians that will fulfill a request based on its clear meaning and spirit rather than language,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “Sometimes custodians go beyond what you’ve asked for because there’s something they know that you don’t.”

Outright denials of the existence of records properly requested are probably pretty rare, Lueders said.

“But it’s indicative of a desire to thwart the request rather than fulfill it,” Lueders said. “That spirit of noncompliance is something that ought to concern everyone.”

Brinkman is a Wisconsin State Journal state government reporter. Your Right to Know is distributed monthly by the Wisconsin Freedom of Informartion Council, a nonprofit group dedicated to open records and open meetings.