October: Lawmakers should release bill drafts

2005 Columns

Freedom of information, like all of our freedoms, demands our watchfulness if the rights of the public are to be preserved.

Public records and open meetings are a cornerstone of clean and open government. The ability of citizens to monitor and participate in government depends on it.

Unfortunately, sometimes we have to fight for this freedom against representatives of our own government.

Two state legislators seeking to pass a new law to allow citizens to carry concealed weapons have deemed it appropriate to share their bill draft with lobbyists — but not with the public. Nor were documents shared with the Wisconsin Department of Justice, despite our request, and despite Wisconsin law stating such records should be made public.

On Sept. 1, I directed our Public Integrity Unit at DOJ to file a complaint alleging a violation of the state public records law by State Sen. David Zien, R-Eau Claire, and Rep. Scott Gunderson, R-Waterford, asking the court to compel these legislators to release the draft of a bill that would allow Wisconsin residents to carry concealed weapons.

It is the standing position of the Justice Department that such bill drafts are public records once they have been shared with third parties.

When the complaint was filed, I said Wisconsin citizens have the right to know what legislation is being considered by the state Legislature. That’s not a privilege reserved for special interests.

According to our complaint filed in Dane County Circuit Court, Gunderson and Zien received a written request in August from Deputy Attorney General Daniel Bach for the bill drafts. On Aug. 23, the state legislators declined to produce the requested information, citing the exception for “drafts” set forth in Wisconsin law. Bach then renewed his request for disclosure of the legislation and also included an Attorney General opinion that I issued in 2003 stating that drafts of bills must be made public if they have been shared with third parties.

Media reports indicate that Gunderson shared a bill draft with a National Rifle Association representative, but refused to share it with DOJ attorneys — despite reports that the proposed legislation would require DOJ to issue concealed carry permits.

Zien noted in his response to Bach that he must be careful “to protect the institutional integrity of the Legislature.” Yet I see no institutional or other legitimate purpose served by keeping secret draft legislation shared with selected third parties, but not with the public and another branch of government.

Zien was quoted in the Milwaukee Journal Sentinel saying that if DOJ prevailed, the Legislature “would be turned upside down. It will be disastrous.” But this case is not about the right of legislators to consult among themselves, with staff, or with attorneys in the Legislative Reference Bureau. It is about what happens when such legislation is shared with others such as lobbyists. To deny this document to other members of the public at that point is unfair.

We explained to Zien that the Department of Justice has a significant interest in any legislation impacting on public safety. Further, the public and news media have a profound right to freedom of information, to public records, and to a government of openness — not secret backroom information sharing.

We are asking that the court order the state legislators to produce the requested records pursuant to the public records law, along with attorneys’ fees, court costs and any other relief deemed appropriate. In the meantime, a bill potentially impacting the operations of DOJ and, more importantly, the safety of our citizens remains a closely guarded secret between two legislators and their special interest supporter, the NRA. That is not how a clean, open government is supposed to function.

Lautenschlager, Wisconsin attorney general, wrote this column for the Wisconsin Freedom of Information Council, a nonprofit group of media and public members devoted to protecting public access to meetings and records.