Gov. Scott Walker on Monday refuted reports that his administration is doing anything questionable when it comes to Wisconsin's open records law. But those reports brought to light a change made this summer by the state's Public Records Board that could shield communications like public officials' text messages and Facebook messages from being made public.
What was the report Walker objected to?
The Wisconsin State Journal reported on Sunday that Walker's administration has, in at least two recent cases, judged government records being requested to be "transitory." And because it doesn't have to keep transitory records, it can't release records it doesn't have.
What 'transitory' records were being requested?
This summer, the State Journal requested copies of text messages sent by a former Department of Administration aide related to a failed $500,000 loan given by the Wisconsin Economic Development Corporation to Building Committee Inc., a now-defunct company owned by a top donor to the governor's campaign.
The request was denied on Aug. 25. In the denial, DOA spokesman Cullen Werwie told the State Journal, "it’s worth noting transitory messages are not required to be retained."
In April, the liberal group One Wisconsin Now requested copies of visitor logs for the executive residence. The original request asked for records from Nov. 5, 2014 — the day after Walker won re-election — to the present date, which was at that time April 29. In October, logs for the period of April 9 through August 26 were released to OWN and a group of reporters.
DOA legal counsel Elisabeth Winterhack told OWN the administration had no responsive records prior to April 8, 2015. Winterhack said the records are transitory, and not required to be kept under state law.
And what was the governor's response to all of that?
Asked on Monday whether officials should hold onto exchanges like text messages, Walker said, "I believe they're following the law, what's required under the law in the state of Wisconsin. We'll continue to do that going forward."
"I think some of the reports weren't an accurate description of what actually happens in state agencies and the Wisconsin Economic Development Corporation," Walker continued, addressing reporters after a menorah lighting ceremony at the executive residence. "In terms of what I do, specifically, if someone sends me a text or sends me a personal email that involves state business, I forward it to my state email account so that there's a record there. And as you all know, in the past four, almost five years I've been in office, I've gotten tens of thousands of open records requests fulfilled, many including information from me or from other individuals that was forwarded from personal texts or emails. So that's been a pretty consistent policy."
So who decides what's a transitory record and what has to be done with it?
That's the job of the state Public Records Board, which meets quarterly in Madison. The board includes designees from the Wisconsin Historical Society, the attorney general, the state auditor, the Legislative Council director and the governor.
Matthew Blessing, administrator of the division of library-archives for the Wisconsin Historical Society, is the board's chairman. Members are Paul Ferguson, who heads the Department of Justice's Office of Open Government; Bryan Naab, a deputy state auditor; Melissa Schmidt, a senior staff attorney for the Legislative Council; Sandra Broady Rudd, an operational risk consultant for Wells Fargo; Carl Buesing, an attorney with Hopp Neuman Humke; and Peter Sorce, a Washington County supervisor. Georgia Thompson is the board's executive secretary.
A position for a small business designee of the governor is vacant.
When did the board make that decision? And what does it mean?
The board changed the policy regarding transitory records on Aug. 24, although it did not include reference to that action in the minutes from that day's meeting.
Transitory records are defined as "records of temporary usefulness that have no ongoing value beyond an immediate and minor transaction or the preparation of a subsequent (final) record" and are "of such short-term value that they are not required to meet legal or fiscal obligations, initiate, sustain, evaluate or provide evidence of decision-making, administrative or operational activities."
The old definition listed "routine requests for information that require no policy decision, special compilation or research are transitory to the sender and the recipient" as an example. The new definition includes "emails to schedule or confirm meetings or events, committee agendas and minutes received by members on a distribution list, interim files, tracking and control files, recordings used for training purposes and ad hoc reports for individual use."
Previously, such records were required to be kept "until no longer needed." Now there is no requirement for retention.
So what happens if someone deletes a text message before someone makes a records request for it?
As long as the record is deleted before the request is made, nothing.