The Legislature is required to respond to open records requests — just as any other government entity in the state. But in its own statutes, the body gives itself a major pass that allows its records such as emails and correspondence, and therefore its actions, to be shielded from the public.
Legislators and staff may simply delete or throw out the records. Unlike other governmental entities, there is no requirement that they save records, prior to those records being requested via an open-records request.
Rep. Jimmy Anderson (D-Fitchburg) and Sen. Chris Larson (D-Milwaukee) are seeking to end that skirting of openness, in a bill that requires the records be preserved for permanent use, eliminating the exemption the Legislature had afforded itself.
Anderson was attending an introductory meeting when he first joined the Legislature and asked what would happen if a member of his staff accidentally deleted an email, thinking he would find out how to retrieve it. He was told that it didn’t matter.
“It blew me away that all it took was pressing the delete button to make it possible for legislative offices to hide things from the public and I thought that was unconscionable and needed to be fixed,” says Anderson.
As an example of what can be discovered when records are not deleted, he points to the email from Majority Leader Jim Steineke, discussing creating the racial disparities task force as a way to avoid acting on legislation the Legislative Black Caucus and Gov. Tony Evers were proposing because the issue was a “political loser.”
“We can get little glimpses from time to time,” says Anderson, adding it does the public a disservice not to be able to see all such correspondence. That message was from a private email account owned by Steineke and was captured in an open-records request from Up North News because a staff member in the building was copied on it and did not delete it.
“Openness and transparency are two of the hallmarks of the American system of government,” write Anderson and Larson in the co-sponsorship memo arguing for their bill. “Any journalist, business owner, or average citizen can make an open records request to get a better view of what is being done in their name, whether it be the Department of Revenue, their local school board or Common Council, even the Governor’s office. Technically, this applies to the legislature as well, but with one key difference.”
The fact that legislators can delete records means that much of the business of the Legislature is done behind the public’s back.
“The exclusion of legislators from records retention rules in place for every other state and local government official is wrongheaded and unjustifiable,” says Bill Lueders, the president of the Wisconsin Freedom of Information Council. “It leads to inevitable abuse and eventual corruption. There is simply no reason that the streets superintendent in Necedah must hold on to records of correspondence regarding a cracked sidewalk for years while a lawmaker can receive a letter from a lobbyist promising donations for favors and simply destroy it to keep it from seeing the light of day.”
Anderson and Larson are putting this bill forward during Sunshine Week — a celebration of openness and transparency that the government is supposed to have with the public, including but not limited to, journalists.
The legislators say the current policy — which many legislative offices take advantage of — defies the spirit of openness. The bill was introduced last session but was left to languish in committee by the Republicans.
“This essentially makes open records for legislators an ‘honor system,’ and creates perverse incentives to delete records the public would otherwise have access to,” Anderson and Larson stated in their memo introducing the bill and seeking cosponsors.
The analysis of the bill by the Legislative Reference Bureau is straightforward:
“Currently, the Public Records Board supervises the state’s public records management and preservation programs and may set retention schedules for public records. However, the records and correspondence of any member of the legislature are excluded from the definition of “public records” for public records retention purposes. This bill eliminates that exclusion.”
Did you know that WI legislators are not required to keep records of their correspondence, making open records law effectively meaningless?
Representative Jimmy Anderson and I want to change that. Today, @Rep_Jimmy and I introduced a bill (LRB-2525) to fix this.
— Senator Chris Larson (@SenChrisLarson) March 18, 2021