November: End lawmakers’ ability to purge records

2011 Columns

No one deserves more credit for forging Wisconsin’s traditions of open government than the state Legislature.


From passing the nation’s first public records law in 1849, one year after Wisconsin became a state, to the last major update of our Open Records and Open Meetings Laws in the early 1980s, the Legislature has been at the forefront of this important cause.


Ironically, though, it has shown a peculiar reluctance to subject itself to the same rules it has put in place for all other state and local government bodies.


For instance, only the Legislature can have a majority of its members meet in secret to hash out details of legislation, under the exemption it’s created for partisan caucuses.


And only the Legislature claims the right to pass rules that trump the Open Meetings Law. This has, among other things, been used to arrest citizens for videotaping the Legislature, which has decreed that every other governmental body in Wisconsin must make “a reasonable effort to accommodate any person” who wishes to record, film or photograph any government meeting.


Wisconsin’s Legislature has also exempted its members from the records retention rules in place for all other state and local government officials. Thus legislators can destroy records whenever they wish, so long as there is not a pending records request.


This quirk in the law came to light in 2006, when the Milwaukee Journal Sentinel sought emails regarding former Assembly Speaker Scott Jensen’s decision to resign following his conviction on three felony misconduct in office charges (later overturned). All of Jensen’s emails were deleted, as the law allows, on the day he left office.


Let’s put this in sharp relief: Local officials must abide by minimum retention periods, generally seven years, for most records. But a state lawmaker’s correspondence – say, a spate of letters and emails taking bitter issue with a given decision or proposal – can be purged or shredded at will.


Last year, the Lakeland Times asked for emails on a particular issue between state Sen. Jim Holperin, D-Conover, and the state Department of Natural Resources. The newspaper received fewer emails from Holperin than from the DNR, and when it asked for an explanation was told that the senator was deleting emails “judged not to be of substantive exchanges.”


Now Holperin is the lead sponsor of a newly introduced bill, SB-248, to remove the current exemption for lawmakers from the state’s retention rules.


“There is no reason for this exemption to exist in statute, in my view,” says Holperin in an interview. “Legislators keep all this stuff anyway.”


Holperin decided to introduce the bill in response to concerns raised by the Lakeland Times. While he doesn’t think these are widely shared, “I said you guys are making a good point and I agree with you.”


The bill’s lead sponsor in the Assembly is state Rep. Jon Richards, D-Milwaukee. Richards is also the author of a proposed constitutional amendment to make the Legislature subject to the Open Meetings Law, following a Supreme Court ruling this summer that carved this out as yet another area where the people who make the laws are not expected to obey them.


Holperin says other politicians seeking office have vowed to end this exemption but did nothing to make this happen once they got in office. Now he’s uncertain about its chances of passage.


“I don’t know whether this bill will get a public hearing or not,” Holperin says. “I hope it does. We’ll see who shows up.”


This is a bill that deserves everyone’s support – including the state Legislature’s.

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