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Open records

Members of the Legislature's Joint Finance Committee speak to the press at the state Capitol in early June. At center is Rep. John Nygren, R-Marinette, co-chairman of the committee.

MADISON — Legislative Republicans on Thursday unveiled sweeping changes to the state’s open records law that would dramatically curtail the kind of information available to the public about the work of lawmakers.

The proposal would block the public from reviewing nearly all records made by state lawmakers and their aides, including communications and the drafting files of legislation.

“This is the single most sweeping and outrageous affront to Wisconsin’s tradition of open government that I have seen in my quarter century of involvement with the (Wisconsin) Freedom of Information Council,” said council President Bill Lueders.

Racine-area Democratic representatives said they are “deeply concerned” and fear the move will “breed corruption.”

The proposed changes were part of a large omnibus motion to the 2015-17 state budget that the Legislature’s budget writing committee was set to take up Thursday evening.

The changes would be effective as of July 1, a day before the proposal was released.

Joint Finance Committee co-chairman Rep. John Nygren, R-Marinette, was asked by a State Journal reporter which lawmaker requested the changes, but Nygren kept walking without answering the question.

When asked whether Gov. Scott Walker would support or veto the changes, spokeswoman Laurel Patrick said, “Governor Walker will review the budget in its entirety when it reaches his desk.”

Committee member Sen. Luther Olsen, R-Ripon, said he did not request the changes, and isn’t sure who did. But Olsen added legislative leadership must support the changes, otherwise they wouldn’t be included in the motion.

“I honestly don’t need (the changes) for my purposes,” he said. “We have nothing to hide.”

Sen. Howard Marklein, R-Spring Green, also said he didn’t know where the idea came from and wasn’t sure if he supported the changes.

Olsen said lawmakers have previously raised concerns about whether communication between lawmakers and constituents should be public.

The so-called 999-motion included numerous items that the leaders of the budget committee proposed to add to the budget with limited public scrutiny. The motion is written in a way that also prevents the public from knowing which lawmaker suggested the change, unlike most budget proposals.

Assembly Minority Leader Peter Barca, D-Kenosha, said Thursday he feared the proposed changes would “breed corruption.”

“I just think the Republicans are drunk with power,” Barca said. “The public has a right to know what is going on in their government. It’s hard to hold elected officials accountable when you don’t know what they are up to.”

Limiting access to the drafting files of legislation would not only prevent the media and the public from ensuring that bills are not being unfairly influenced, Barca said, but it would also make it impossible to truly grasp the purpose behind bills once they become law.

“A lot of times courts end up attempting to figure out what the legislative intent was and (drafting files) help to ascertain that,” he said.

Barca also raised concerns about other items contained in the 24-page budget modification document, including a proposal to expand payday lending services and an item allowing employees to agree in writing to work seven days straight without a day of rest.

“It could lead to coercion of employees to have time away from their families that they would really rather not have, but they know their jobs are at risk,” he said.

State Rep. Cory Mason, D-Racine, said he was “deeply concerned” about the attempt to keep the Legislature from “any sort of public records oversight from the public or the press.”

“… On the last day to have these very controversial policy items slipped into the budget, it is not good for the people who elected these lawmakers,” Mason said. “The last motion – the 999 motion – is meant to be for minor modifications or policy changes. It is not meant to eliminate any reference to a ‘living wage’ or to alter how our retirement system is governed, or to give a big giveaway to the payday loan industry. . . . It’s a potpourri of really bad policy that they probably couldn’t have done with standard legislation.”

Calls to state Rep. Thomas Weatherston, R-Caledonia, and State Assembly Speaker Robin Vos, R-Rochester, were not immediately returned Thursday night.

Lueders said lawmakers seeking the changes were “cowardly” to propose them as part of a large package of changes to the state budget a day before a holiday weekend.

“If Wisconsin wants to take a giant leap into corruption, I think that’s a good move for them to make,” Lueders said. “It’s cowardly. It’s dirty. It violates the tradition of the state of Wisconsin and it shows what miserable cowards that these people are that they would stick this in an omnibus motion.”

Lueders said the proposals could be in response to news groups — including the State Journal — that used the open records law to reveal that Gov. Scott Walker’s administration pushed for removal of the Wisconsin Idea from state law in the face of opposition from state higher education leaders.

Lueders also cited a 2014 State Journal investigation of drafting files that showed Rep. Joel Kleefisch, R-Oconomowoc, helped write a bill that could have significantly reduced a wealthy, divorced donor’s child-support payments. A State Journal article this spring also used the records law to uncover proposals, known as term papers, that new lawmakers were offering to Assembly Speaker Robin Vos, R-Rochester.

“They’ve been embarrassed by too much that has come out in terms of these records,” Lueders said.

Sen. John Erpenbach, D-Middleton, said if the changes pass, “we don’t need an open records law anymore.”

Erpenbach was sued himself by the conservative MacIver Institute for withholding names of people who contacted him. But Erpenbach said that, while he withheld the names, he was happy to provide the contents of the emails. Those would become secret under this motion, and he doesn’t think that’s a good idea.

Under the motion, records and correspondence of any officer or employee of the state Legislature or legislative service agency would not be considered public records.

The definition of public records would change, too, by exempting “deliberative materials” from the public’s view.

Deliberative materials are defined in the motion as communication, opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, and notes. These materials would be exempt if they were created or prepared in the process of reaching a decision about state policy or in the course of drafting an official document or communication.

The motion also gives a legislator a “legal privilege” or right to refuse to disclose and to prevent a current or former staff member from disclosing a wide array of types of communication that occurred during the lawmaker’s term in office.

In another proposal, the Legislative Reference Bureau must keep all drafting files for legislation confidential. The LRB would no longer be required to maintain and house the drafting records of legislation introduced in prior legislative sessions and use such records to provide information about legislative intent. Currently, the public can examine drafting files for bills after they have been introduced.

The motion also eliminates the requirement that the LRB maintain all drafting files for legislation during the current legislative session and release those files for public view once the legislature adjourns.

Orville Seymer, an open records specialist with the conservative Milwaukee-based organization Citizens for Responsible Government, said the proposals “are just terrible.”

“These are the public’s records — that’s the idea,” said Seymer. “We allow them to keep the records in good condition, but these are really the public’s records and they’re trying to say we can’t see them? I strongly, strongly disagree.”

Reporters Cara Spoto and Mark Sommerhauser contributed to this report.


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