Attorney General J.B. Van Hollen has declared war on the state’s open records standard.
His Department of Justice is arguing that legislators are immune from lawsuits demanding that they turn over records that the public has a clearly defined right to review.
If the attorney general’s lawless stance is accepted as the new normal in Gov. Scott Walker’s increasingly authoritarian Wisconsin, citizens would lose their right to demand information about what legislators are doing in their name and with their tax dollars. And the basic premises of democratic governance would be shredded.
Those premises are stated in the Wisconsin Constitution, which declares that “governments are instituted, deriving their just powers from the consent of the governed.”
It is impossible for the governed to give their consent if they cannot get answers to basic questions about what legislators are doing in their official capacity.
Attorneys general of both parties have historically defended the public’s right to know.
What Van Hollen is doing is unprecedented.
Legislators generally respond to open records requests, and past attorneys general have refused to provide aid to members of the Assembly and Senate who have been reluctant to follow the rules.
But Van Hollen is now arguing that state Sen. Leah Vukmir, R-Wauwatosa, need not follow the rules because she is immune when the Legislature is in session from lawsuits seeking to compel a response to an open records request. Since the Legislature rarely if ever goes out of session, this new standard would mean that legislators would rarely if ever have to respect the state’s open records law.
"I think the attorney general's position is a radical misinterpretation of that (provisions that are supposed to outline a narrow measure of legislative immunity),” Susan Crawford, a Madison attorney who served as an assistant attorney general and as chief counsel to former Gov. Jim Doyle, told the Milwaukee Journal Sentinel. "I've never heard a legislator asserting they're above the law, which is what (Vukmir’s) doing. You have to wonder what she's trying to hide."
What Vukmir has to hide are records of her involvement with the American Legislative Exchange Council, a shadowy national group that works with corporations to develop so-called “model legislation” and then urges friendly legislators to enact that legislation. The Madison-based Center for Media and Democracy (with which The Capital Times has worked on a number of issues) sought those records from Vukmir. When she refused to turn them over, the group sued the senator.
According to affidavits filed in regard to the lawsuit, a Vukmir aide refused to accept paperwork associated with the open records request from a process server. The affidavit alleges that the Vukmir aide was belligerent.
That’s the point when a responsible attorney general should have stepped in to ensure that the law is followed.
Instead, Van Hollen’s office is alleged to have instructed Vukmir’s office on how to resist demands for its cooperation. And Van Hollen’s lawyers are in court trying to thwart an open records lawsuit.
The attorney general is Wisconsin’s chief law enforcement officer. He is supposed to serve the people of the state. Yet, in attempting to block action to guarantee the public’s right to know, Van Hollen is attacking the right of citizens to know what their government is doing in their name but without their informed consent.
No Wisconsin attorney general has ever so ill-served the state or its citizens.
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