Wisconsin Public Records Board Rescinds Controversial Action on Open Records

After a public outcry, the Wisconsin Public Records Board voted unanimously on Monday to rescind actions it took on August 24 that were apparently used by the Walker administration to deny a pending public records request.

The actions of the formerly obscure board came to public attention when the Walker administration denied access to public records using a "transitory records" justification. In August, the board had made changes to the definition of transitory records, and the next day the Wisconsin State Journal was denied access to text messages related to the Wisconsin Economic Development Corporation (WEDC) scandal it had been tracking.

After open records advocates at the Freedom of Information Council (FOIC) filed a verified complaint with the Madison district attorney asking him to investigate the board's actions as possible violations of the open meeting law, the board reconsidered and called yesterday's public meeting, which was attended by a dozen reporters, five cameras, open records advocates, and concerned citizens.

Board Reconsiders

In his opening remarks, Board Chair Matt Blessing of the Wisconsin Historical Society explained that he had been a librarian and archivist for 27 years, that the public records board has been nonpartisan since its creation in 1940, and that decisions about retention are always driven exclusively by information contained in documents, never by format or media.

The retention of records is governed by overlapping statutes. The primary job of the board, operating under Chapter 16 of the statutes, is to tell public officials how to retain records, regularly publishing records retention schedules.

In other words, the board's job is to protect records.

One of the first members of the public to testify, who identified himself as a retired professional archivist, supported the need to clarify the word "transitory."

"The changes made by the board as I read them are clarifying, not substantive; few people understand the definition of transitory record, and clarification is badly needed. Text messages are not transitory records, they are records scheduled for retention. But it is good to revisit the changes, there may be a clearer way to achieve the goals."

Steve Hirsch also testified. Hirsch used to be the head of the Public Records Board.

"There is a need for transitory definition, but training is needed for people on how to do this. Visitor logs for executive residence–whoever determined that was a transitory record is not correct," said Hirsch, who later explained that those records are already categorized in the retention schedules and—by definition—are not transitory.

But some in the audience suggested that the board had to recognize "that there have been numerous and systematic attempts to avoid the open records law in this state" and their actions take place in a broader context. In July of this year, the Governor and legislative leaders proposed changes to the open records law in the budget without public notice or hearings. Those changes were also beaten back after a bipartisan public outcry.

James Friedman, a lawyer for Godfrey and Kahn who represents the newsmedia, testified, "we do not question your intentions, but the consequences have been disastrous. Officials have taken this as a license to destroy records. It is not your role to sanction intentionally or even inadvertently the destruction of records."

Bill Lueders, the head of the FOIC who brought the legal complaint, cited the adage "give them an inch they will take a yard." "It is my sincere belief that the board did not intend to give new powers to destroy records. The board should draw a bright line so it does not happen again," Lueders said.

Lueders noted specifically that language about "training videos" needed to be clarified as there was a pending case against the Wisconsin Attorney General for training videos. At this time, the FOIC has no plans to drop its complaint against the board.

"The party in power has used this new translation of the law to deny public records requests that they couldn't before. Your committee could make a difference so we can maintain public trust; we desperately need that," noted another member of the public.

Restoring Public Trust

Some 1,900 written comments came into the board from across the state; from leaders of community groups, the editors of large and small newspapers, and citizens. The Center for Media and Democracy detailed Wisconsin news stories that had relied upon text messages, and Governor Walker also supported the retention of text messages in an interview with WKOW's Greg Neumann, while continuing to argue that the records requested by CMD in its lawsuit against the governor over his changes to the Wisconsin Idea should be kept secret.

The vote to rescind was unanimous and went a long way toward restoring public trust in a board that is made up primarily of professional public employees who were reluctant to speculate on the administration's actions.

But one member of the board, a Walker appointee, gave his thoughts on the matter.

Carl Buesing, an attorney and local government designee, stated that in his view the board's actions did not broaden or narrow the definition of transitory records. "What we tried to do was to reduce the amount of abuse that might occur of someone exercising discretion over the records. To suggest in any fashion that we are limiting access to text messages, or Facebook posts is completely incorrect."

"Now we have taken this step in response to hundreds if not thousands of emails and comments to do the right thing, but I think we need to discuss this in greater detail. I am upset with any assertion that there is a linkage between what the legislature did in July with what we did in August."

Speaker Vos's attempt to undermine the open records law is about as relevant to the board's activities as "North Korea dropping an atomic bomb," stated Buesing.

Whether the board's actions will result in a change in administration procedure with regard to open records has yet to be determined, but the hullabaloo will serve as a cautionary tale for Speaker Vos and other members of the legislature who appear intent on changing the open records law next session.