May: Attorney General defends secrecy

2006 Columns

Gregg Walker is ticked off.

“It’s absolutely ludicrous that this attorney general thinks she’s for open government and open records,”  fumes Walker, the general manager of The Lakeland Times newspaper in Minocqua, referring to Peg Lautenschlager. “In a critical test of the public’s right to know, [she] failed us and fought for secrecy in government conduct.”

The Lakeland Times is suing the state Department of Natural Resources, over records of a disciplinary investigation regarding a DNR game warden. It’s a huge strain on Walker’s tiny independent paper, which has sunk in about $40,000 so far. But it’s an important lawsuit to fight, because of the precedent it could set.

The DNR, represented by the attorney general’s office, is refusing to release records of its probe into charges that a game warden ran an illegal license-plate trace to learn who was dating his nephew’s ex-girlfriend. The warden was disciplined for violating “work rules” and the DNR recently agreed to pay $90,000 to settle a federal invasion-of-privacy lawsuit brought by the person whose plates were traced.

What makes the case critical – and frightening – is the state’s novel contention that the records sought are exempt from disclosure because they might someday be used for “staff management planning.” This interpretation, argues The Lakeland Times, “defies decades of precedent under the Open Records Law and, if accepted, would allow custodians to deny public access to virtually all disciplinary records.”

A circuit court judge rejected the state’s position, saying it wasn’t even a close call. But the state appealed, so The Lakeland Times has had to continue the fight. A state appellate court ruling is expected soon.

The DNR case is one of two in which Walker’s paper is up against Lautenschlager’s office. The Lakeland Times and Milwaukee Journal Sentinel are suing two state agencies for refusing to release names of rank-and-file employees, pursuant to new labor pacts. Now even the identity of the people whose salaries we pay is secret!

Lautenschlager’s office also backed the state Elections Board’s initial refusal to release its statewide voter file, on grounds that “it is not complete and has not been fully checked for accuracy.” The requester, Wisconsin Voter Lists, filed suit over this denial, prompting an eventual agreement to release the list.

This is all very surprising, since Peg Lautenschlager is, in the main, a champion of open government. Her office has issued good, strong opinions in favor of the public’s right to know.

And Lautenschlager has courageously sued public officials who have arguably violated these laws, including a Beaver Dam agency that secretly negotiated a deal with Wal-Mart to build a city-subsidized distribution center, and lawmakers who have shared bill drafts with special-interest groups but not with other requesters.

Yet in the Elections Board case, Lautenschlager’s office claimed the voter list is a “draft” because it is a work in progress. Wisconsin Voter Lists disagreed, noting that the list’s creation has been plagued with missteps and delays over which Wisconsin now risks losing federal funds: “The public is entitled to see for itself how far along the process is and what, exactly, the Elections Board and its contractor have been spending money to create.”

Similarly, in the game warden case, the requested records are needed to know how well or how poorly DNR officials fulfilled their duties with regard to a serious misconduct allegation. If the state’s position prevails, the ability of public officials to cover up employee misconduct, or their own, will be greatly enhanced.

Bob Dreps, a Madison attorney who represents the requesters in all three cases, observes diplomatically that Lautenschlager’s role as attorney general puts her in “a difficult position.” Her office is duty-bound to represent state agencies that are being sued. “If an agency has an arguable position, I think she has to argue it.”

In certain rare situations, the attorney general’s office can refuse to defend an agency. That’s what Walker thinks it should do here. “Who’s representing the rights of the people?” he asks.

Lautenschlager’s office is, to be sure, in a bind. But it’s nonetheless sad to see it defending public officials trying to keep secrets, and not the public’s right to know.

Bill Lueders is president of the Wisconsin Freedom of Information Council, a nonprofit group dedicated to open government. Your Right to Know is a monthly column distributed by the council.