Wisconsin’s Public Records Board has reversed a decision it made last year to change the state language describing transitory records, reverting back to its 2010 definition.
The board voted Monday afternoon to abandon new language it approved in August, which board members said sought to clarify what kinds of communications by public officials should be discarded and what kinds retained.
The language is a part of state policy and outlines the definition of what records managers call a “transitory record,” meaning it serves no long-term purpose and does not need to be kept. The language, and its respective policy, acts as a roadmap for public officials and records managers for what records they must save — and potentially turn over in a public records request — or trash.
Matt Blessing, the chairman of the board, and an archivist for the Wisconsin Historical Society, said the board will come up with a process for how to better update the language in its original transitory records description, which has been in place since 2010.
“We’ll address it in the future,” he said, following the board’s hearing Monday. The board may return at a future meeting with new language describing transitory records to be considered by the board, he said.
Changes are still necessary to clarify the definition of a transitory record because the board’s 2010 policy was “was vague and used professional jargon,” Blessing said.
“It is imperative that each member of the board feel absolutely confident that the suggested revisions … offer clear and precise language and results in more cost effective management practices as is its statutory duty,” he said.
Under the original language, the board described transitory records as routine correspondence that did not involve policy. It did not list specific examples. The new language had added a list noting possible examples of transitory records, which it said could include emails to schedule or confirm meetings or events, committee agendas and minutes received by members on a distribution list, and recordings used in trainings. It is a record’s content that determines how long its kept, not its format, Blessing said.
That change in language, particularly the inclusion of a list of examples, ignited media and public scrutiny of what has historically been routine state records management. The Public Records Board, an eight-member appointed panel of records managers and attorneys, does not get paid and has operated with relatively little public notice, writing and updating policies on records retention for the last 68 years.
But the board came under a cascade of criticism after a Walker administration spokesman last year rejected requests for certain records. Department of Administration representatives had classified the governor’s visitor logs and text messages dealing with a failed $500,000 loan from Wisconsin Economic Development Corp. to a now-defunct business as “transitory.”
According to Public Records Board policy, visitor logs are considered public and should be retained. Text messages and emails are also required to be retained by public officials if they involve policy or business issues, according to the board's rules.
Newspaper editorials statewide said the change obstructed the public’s right to records. The Wisconsin Freedom of Information Council filed a formal complaint against the board with the Dane County District Attorney in December. The board has received calls and 1,874 comments criticizing its August decision.
Board member Carl Buesing, a Sheboygan attorney who was appointed by Gov. Walker, criticized media coverage of the board and its transitory records policy.
“We haven’t broadened the definition or narrowed the definition. What we tried to do is refine the description and in so refining the description, I would argue we are trying to … reduce the amount of discretion and reduce the amount of potential abuse that someone who is exercising discretion is able to take,” he said.
Buesing, along with Paul Ferguson, a Department of Justice employee who was appointed by Attorney General Brad Schimel, disputed any connection between the board and partisan interests at the Capitol.
“If anyone thinks I’m carrying the water for Governor Walker, I would suggest the governor appoint the Freedom of Information Council if he truly doesn’t care whether or not there’s somebody inside looking out,” Buesing said.
Bill Lueders, the council’s president, said the group would like to be on the board and had begun pursuing a seat before the transitory records controversy.
The council, a statewide advocacy group comprised of news outlets, says the board violated the state’s open meetings law in conducting its August meeting. The meeting date was posted on the board’s website along with an agenda, but the agenda did not specifically note that changes to the definition of transitory records would be considered. The vote also did not show up in the meeting minutes.
Lueders called the board’s reversal Monday “a win,” but said it still “missed the point,” in how its updated policy was being misused by the Walker administration to deny public records to news outlets. The board should issue a rebuke to elected officials who are misquoting and misusing its policy, he said.
“It underscores the necessity for you to draw a bright line so that does not happen again,” Lueders said. “Don’t give them an inch, please do not give them this inch. Especially now that you know it will lead to the destruction of public records.”
Despite the board’s reversal, he said the group is not ready to drop its complaint and has not heard whether the district attorney is pursuing it.
More than a dozen people spoke at the board’s hearing Monday. Most were critical of its August vote and asked that it be rescinded.
Michael Tauschek said he drove 140 miles from his home in Auburndale, in Wood County, to attend the hearing.
“Open records is very important to me,” he said. "The right to receive government records is a checks and balance system to keep the government working for the people, not the other way around.”
Carol Johnson, of Brookfield, who served as a town supervisor there, asked the board to consider the officials who have to follow its policy when making a new one.
“Keep as broad a definition as possible,” she said. “Individual people have to make these decisions as to whether what they’re doing or what they have is relevant.... The only way the public can know what you’re doing is the records that are out there.”
The board was wise to step back and involve more people in drafting better language for transitory records, said Richard Pifer, an archivist and retired adjunct UW professor who taught records management practices for more than 35 years.
“Given most of the comments this afternoon, most of the individuals didn’t know what they were talking about,” he said.
Pifer said most people don’t understand the role of the board, or its authority in classifying certain kinds of public records. It does not decide whether or not to disclose records, he said.