October: How open to openness will new AG be?

2006 Columns

Almost every state official, when asked, will express support for the public’s right to know how government operates. This is especially true of anyone who aspires to be attorney general, a job that entails authority to interpret and enforce Wisconsin’s open records and meetings laws.

In fact, though, there are vast differences in the extent to which various public officials, attorneys general included, are willing to defend public access to information, especially when there are powerful competing interests. And this has a huge impact on whether openness or secrecy prevails.

Our current state attorney general, Peg Lautenschlager, has, from the point of view of openness advocates, done an uncommonly good job. Asked to interpret disputed areas, she has consistently advised that doors be opened and documents released.

And while the AG’s office has had to defend state agencies who have not been so enlightened – recently, a state appeals court firmly rejected the reasoning it advanced on behalf of the Department of Natural Resources’ refusal to release records of a disciplinary investigation – it has also, under Lautenschlager, shown great courage in standing up to powerful players in defense of openness.

Lautenschlager has filed actions against UW System Board of Regents, state lawmakers and an agency head. She’s gone after quasi-governmental entities that have accepted public money to perform public functions and then sought to operate in secret. Recently, she got involved in an important meetings case after an appeals court practically begged the state Supreme Court to overturn one of the appeals court’s own earlier decisions, to which it felt bound.

Whether Lautenschlager’s successor will continue her strong lead in this area is, for openness advocates, a matter of much conjecture and some concern.

The candidates in the Nov. 7 election, Democrat Kathleen Falk and Republican J.B. Van Hollen, both vow to protect and defend public access, of course. But both disagree with her action against Republican lawmakers who allegedly shared a draft of a bill in progress with special interests but not with the public.

The position advanced by Lautenschlager – that documents shared with others lose their draft status – would make it dramatically harder for special interests to craft legislation without public awareness or input. And while good arguments can be made on the other side, it’s indisputable that bringing this action required a willingness to stand up to powerful players.

Similarly, while both contenders say it’s appropriate for the AG’s office to prosecute state officials for violating the records and meetings laws, it remains unclear whether they’ll continue prosecutions against members of their own parties. These include cases against Transportation Secretary Frank Busalacchi, a member of Democrat Jim Doyle’s team, and Republican state Rep. Jeff Stone, both for withholding requested records.

Beyond that, it’s troubling that neither Falk or Van Hollen see the need for tougher penalties for those who violate the records and meetings laws, still at levels set 25 and 31 years ago. Explains Van Hollen, “I don’t think we have people violating the laws because they say, ‘We can get away with it.’ “

Actually, that’s exactly what some officials seem to be saying, as anyone who follows this area of the law closely can attest.

On the other hand, both Falk and Van Hollen vow to continue the Justice Department seminars and outreach programs to educate local officials as to their obligations under the openness laws. And Falk says she’ll compile a list of “best practices” to minimize violations – an idea so terrific the Wisconsin Freedom of Information Council has already done something similar (see wisfoic.org, under “Open Government Problem Areas”).

Only time will tell just how good a job either of these possible contenders will do in protecting the public’s right to know. One thing that would help the cause, though, would be if these candidates, and the eventual winner, were to hear from citizens who impressed upon them the importance of keeping the workings of our government open to all.

Your Right to Know is produced by the Wisconsin Freedom of Information Council, devoted to protecting public access to meetings and records. Bill Lueders is the group’s president.