In some ways, the dispute was a lawyer’s dream: It was a case of first impression presenting an unusual mix of labor relations, public records and constitutional law. But the case also presented a potential nightmare for officials who keep custody of records, those who want to review them, and anyone else who cares about government accountability.
The State of Wisconsin and its largest employee union had, beginning with their 2003-05 collective bargaining agreements, prohibited disclosure to “the press” of any public record containing the name of a represented employee.
News media were not aware of this provision until the Milwaukee Journal Sentinel in 2005 asked the Department of Administration for its audit identifying the state employees who were no longer permitted to drive state-owned vehicles. A few weeks later, the Lakeland Times in Minocqua independently learned of this union contract provision when it requested the names and salaries of employees assigned to the Rhinelander and Woodruff offices of the Department of Natural Resources.
State officials partially denied both requests, claiming the bargaining agreements required them to delete the names of those represented by the Wisconsin State Employees Union before disclosing the requested records. The newspapers each sued under the Wisconsin Open Records Law, and their cases were consolidated for hearing in the Dane County Circuit Court.
The case presented the most elementary legal issue of all — What is a law?
State agencies and WSEU labor union argued their contract had the force of law since it was ratified by the Legislature in a bill signed by the governor. This trumped the Open Records Law, they said, which applies “except as otherwise provided by law.”
Yet, the potential for mischief created by a “law” granting state employees the right to conceal their identities from the citizens who employ them had never been considered in any legislative hearing. The circuit court ruled for the newspapers, concluding the union contracts did not create an exception to the Open Records Law because the ratifying bill’s language expressed no intention to do so. Only the labor union appealed, arguing in part that separation of powers principles prohibited courts from even considering whether the Legislature had followed its own rules requiring any change in existing law to be specified in the ratifying bill. The court of appeals certified this constitutional issue to the Wisconsin Supreme Court for decision.
In a 6-1 decision, the Supreme Court rejected the separation of powers argument and said state government and its employee unions may not “contract away the public’s rights under” the Open Records Law. The ruling left the door open a crack for individual employees to come forward and argue their personal circumstances justify an exception to the public’s presumptive right of access to records containing their names.
But the high court slammed the door on using the collective bargaining process to obtain an exemption for the labor union as a group.
In the end, Wisconsin’s strong tradition of open and transparent government was reaffirmed. But that tradition was tarnished by the state’s attempt to bargain away the public’s rights and diminished during the four years it took to resolve this dispute.
The lesson? Tradition alone will not sustain the public’s right to know. Its maintenance requires constant vigilance by all who believe in the Open Records Law’s promise “that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”
Bob Dreps, a lawyer for Godfrey & Kahn, is a member of the Wisconsin Freedom of Information Council, www.wisfoic.org, a nonprofit group dedicated to open government and open meetings.