Will release of deleted records make it easier to uncover Legislature’s secrets?
Vos’ office floods watchdog group with documents in response to open records order
Photo by Michael on Unsplash
In turning over up to 20,000 deleted documents to a watchdog group last week, Assembly Speaker Robin Vos might have inadvertently shown a way to get around a loophole in state law that lets the Legislature legally hide material lawmakers want to keep from the public.
At the very least, the speaker’s move is changing how some experienced users of the state’s open records law formulate their requests for records from the state Legislature to include deleted materials.
“I’ve already changed my request template,” says Amanda St. Hilaire, an investigative reporter for Fox6-WITI TV in Milwaukee, who files 100 or more open records requests every year.
On Wednesday, April 6, the progressive watchdog group American Oversight received some 20,000 pages of documents from Vos in response to the organization’s request for records related to the partisan review of Wisconsin’s 2020 presidential election. Vos initiated the review last year and later contracted with former Wisconsin Supreme Court Justice Michael Gablemen to conduct it.
In a statement to reporters Friday, an American Oversight spokesman gave the first description of the materials. “The records, which had been deleted by Vos’ office prior to their recovery and release, include communications with prominent supporters of the stolen-election lie, as well as records related to contract extensions for Michael Gableman,” said communications manager Jack Patterson. “Because of the large size of the production, American Oversight is still processing and reviewing the records.”
As it has with other records it has received relating to the GOP-lead review of the election, American Oversight is posting the documents on a dedicated web page. The organization has also created a summary page where it publishes its analysis.
As of Sunday, that summary highlighted communications involving Vos and proponents of the lie that Trump won Wisconsin’s presidential election, despite losing the state by 20,000 votes in an outcome that has been upheld by several canvassing counts and follow-up inquiries. The summary also indicates that some documents offer new details about Gableman’s hiring.
American Oversight has made several open records requests related to the Vos and Gableman 2020 election reviews. One, directed at Vos and the Assembly, sought records relating to the Gableman review. On March 30, Dane County Circuit Judge Valerie Bailey-Rihn found Vos in contempt of court for failing to comply with her order in November 2021 to produce those records.
The records that American Oversight received from Vos last week are from a separate request and include material generated before Gableman was hired. Bailey-Rihn is also hearing the litigation relating to that request, and in March ordered Vos and his staff to include deleted materials in their response.
Most government agencies are required to retain the records generated in the course of their work. The state records-retention law, however, exempts the state Legislature, allowing lawmakers and their staffs to delete many of the documents that pass through their hands. At least some lawmakers routinely delete most emails, for example. (Democrats in the Legislature have previously introduced bills to end that exemption, most recently in 2021; the legislation did not advance.)
Andy Hall, executive director of the Wisconsin Center for Investigative Journalism, says he and the rest of the center’s Wisconsin Watch staff had not envisioned that deleted records might be retrievable.
“Wisconsin Watch and, I would suspect, other news outlets as well as others who seek information from the Legislature will consider specifically seeking deleted records in future open records requests of the Legislature,” he says. “For too long, legislators and legislative staff have attempted to conceal their actions from the public. ”
St. Hilaire, the Fox6 reporter, says the inclusion of deleted material in the latest records release caught her attention right away.
“I’ve never thought to request specifically deleted records,” she says, “because based on the way the law works, I always was under the impression that if they could retrieve those records, that would be responsive to my request.”
In 2018 after she joined the Milwaukee station, St. Hilaire requested email messages for one week in 2017 and another in 2018 as well as the 2018 calendars for 54 Wisconsin lawmakers.
Some responded reporting that they had no emails for the designated period; with others, “it was clear that we were missing communications about things they absolutely would have been talking about during that period,” St. Hilaire says. That led the station to report on the Legislature’s exemption from the records-retention law, and the fact that a number of lawmakers routinely deleted records.
The disclosure last week that Vos’ office had produced deleted records didn’t just change her plans for making requests in the future, she says. It points to a much larger concern about how some public officials treat the concept of open government.
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St. Hilaire says she’s found most government records custodians work in good faith to carry out their responsibility for making records accessible.
“But when you look at situations like this, it makes you wonder when you file requests, is this a game to some people?” she says. “You have to give the exact magic words to get what you want. That’s not how the system is supposed to work.”
The open records law isn’t just for journalists but for the public, she observes. For a constituent who isn’t familiar with the law’s details — including the ability to retrieve deleted materials — “they’re not going to know how to do that,” St. Hilaire says. “That blocks transparency — that’s not good for democracy.”
For Bill Lueders, president of the Wisconsin Freedom of Information Council, the sheer volume of records that Vos’ attorneys handed over last week prompts a skeptical assessment of their underlying motives.
“My suspicion is that Speaker Vos is trying to bury a needle in a haystack,” Lueders says. “My suspicion is that he purposely overinterpreted the request to apply to any email he could find.”
At the April 6 hearing, Bailey-Rihn accepted an expert’s conclusion that other deleted materials — text messages and personal account email messages from Vos’ mobile phone — could not be retrieved or produced.
In an interview, Jacob Hoffman-Andrews, senior staff technologist at the Electronic Frontier Foundation, said that particularly in the case of messages sent through Google’s Gmail service, that is very likely true if the messages were deleted more than 30 days ago. Under Gmail’s retention policies, which automatically wipe that information when it’s deleted, “remnants may be recoverable within days or weeks,” but not longer.
Nevertheless, Lueders expresses concern that there would not be further investigation for “evidence of lawmakers purposely destroying records to prevent the public from seeing them — which is totally an abuse of public trust.”
Vos “likes giving the middle finger” to open government advocates, Lueders says. Flooding American Oversight with documents last week exemplifies that attitude, he adds, as does the speaker’s defiance of the order that led to the March 30 contempt ruling against him.
“I do think the contempt charge was issued because the speaker demonstrated actual contempt for his responsibility under the law,” Lueders says, “and I find that shocking.”
In the more common scenario involving a public official who resists turning over records, the official will obey a subsequent court order to do so. Lueders calls Vos’ flouting of the November order and the resulting contempt ruling March 30 “extraordinary, if not unprecedented.”
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