May: Lawmakers should retain, release records

2014 Columns

In early April, in a case brought by the conservative MacIver Institute against state Sen. Jon Erpenbach, D-Middleton, the Wisconsin Court of Appeals declared that communications from citizens to lawmakers are, as one judge put it, “subject to the open records law, without redaction.”

But the court also recognized that legislators have the power to tweak the rules for themselves — which is exactly what they’ve done on the critical issue of records retention.

Records retention rules determine how long custodians must keep records. State agencies and officials must retain documents for periods set by the state public records board. The default records retention period for local governments is seven years.

Yet the state’s law excludes “(r)ecords and correspondence of any member of the Legislature” from the list of records that must be retained. Legislators can keep records for seven years, one month, one day, or not at all.

Lawmakers must still provide any records they possess in response to a request. But they don’t need to provide documents they don’t have, and nothing compels them to keep documents.

It’s not hard to see that the law creates perverse incentives for legislators. It is much easier to delete a document than retain it. Deletion also avoids putting a legislator in the potentially uncomfortable position of having to provide a document to a constituent, reporter or political rival.

Yet legislators clearly possess some of the state’s most important documents. They make the laws that everyone must follow, and the public has a significant interest in how legislation is developed. This means knowing who is talking or writing to legislators and seeing what documents they receive.

The court of appeals recognized the importance of legislative documents in the MacIver Institute case. It said public awareness of who is doing what to influence public policy “is essential for effective oversight of our government.” The source of a communication is also important, whether it be public or private, labor or management, nonprofit or for-profit.

In the MacIver Institute case, the court ruled that Sen. Erpenbach must provide unredacted copies of emails he received during the debate over 2011 Act 10, which essentially ended collective bargaining rights for most government employees. Previously, the names and email addresses of senders were blacked out.

Sen. Erpenbach, to his credit, did not simply destroy the emails upon receipt. But under current law he could have.

Let’s hope the court of appeals ruling, by reaffirming legislators’ obligation to provide records, does not prompt a shred fest at the Capitol. In fact, legislators should establish retention policies that apply to all members of the Assembly and Senate, and give the public assurance that legislative records won’t be deleted.

To be clear, retaining records doesn’t always mean they must be disclosed. Custodians are still required to withhold sensitive personal information, like medical records. And custodians can deny a request or redact information if the public interest in nondisclosure outweighs the public interest in disclosure. It’s what’s known as the balancing test.

Records retention just preserves the public’s chance to see a record, even if that chance is later denied under confidentiality rules or the balancing test. Deletion doesn’t.

Legislators may be the ones holding the records related to their office, but at the end of the day, it’s still the public’s information. Legislators should respect the public’s right to know and retain their records.

It’s an issue all candidates for state Legislature should be asked about this election year.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (, a nonprofit group dedicated to open government. Christa Westerberg, an attorney with McGillivray Westerberg & Bender, is the group’s vice-president.