Brad Schimel

Attorney General Brad Schimel is convening a summit on Wednesday to discuss potential areas of the state's open records law that could be changed. The last time the records law was changed was 1981. 

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Attorney General Brad Schimel is starting the substantial task of updating the state’s open records law at a time when voices of outrage are still reverberating in the Capitol’s halls over a recent unsuccessful attempt by leading lawmakers to significantly diminish public scrutiny.

“This is a big beast,” said Schimel of the task, who has said since he was elected in November he wanted to update the state’s open records law for the first time since 1981 to, in part, better reflect government officials’ use of modern technology.

“I don’t believe you’ll find the word ‘electronic’ in (the records law) anywhere,” he said Friday.

Schimel will host a daylong summit on open-government issues Wednesday, an event scheduled before the release of a proposal drafted by legislative leaders and Gov. Scott Walker that was later dropped from the state budget that would have kept virtually all records and communications by state and local lawmakers private and restricted public access to drafting files of legislation. Schimel said on Friday the two events had nothing to do with each other.

City and county attorneys, journalists, open-government advocates and government officials at the event will discuss discrepancies in the state’s open-government laws, the effects of new technology for police officers like body and car dash cameras and how the open records law applies, as well as the costs of fulfilling open records requests, among other topics.

Schimel said it begins a process that will likely end with recommendations to alter the records law — a sensitive idea for some open-government advocates still reeling from the budget proposals.

“We are still supportive of a process that would selectively and strategically update portions of our open records law,” said Wisconsin Freedom of Information Council president Bill Lueders. “But it’s also fair to say that we are much more concerned now about the potential consequences of opening our open records law for revisions now that we know there are people in the Legislature who have so little respect for our traditions of open government that they would try to do what they did.”

Technological changes

While the budget proposal was drafted by Republican lawmakers including Gov. Scott Walker, Schimel, also a Republican, denounced the proposed changes to the records law, saying it would take the state in the wrong direction.

The aim of changes that result from the summit and subsequent talks is largely to update the law to reflect modern technology and how governmental bodies use it, he said.

“(Technology has) created difficult questions that the law doesn’t answer, and what we have been doing for almost four decades is we’ve been dealing with it on a case-by-case basis,” Schimel said, adding that in updating the law “you don’t want to do anything, though, that limits access.”

When Schimel proposed the idea of an open government summit, the Wisconsin Freedom of Information Council in a May 20 letter to Schimel offered a few ideas for updating the law including requiring public officials and government employees to:

  • Use only official government email accounts to conduct business.
  • Require electronic communication be kept as long as paper communication.
  • Ban emailing, text messaging and instant messaging between members of a government body during public meetings if the chatter relates to the meeting’s business.
  • Require an audio or video recording of closed meetings.

Representatives from the Wisconsin Newspaper Association and Wisconsin Broadcasters Association also proposed in a May 29 letter to Schimel that Wednesday’s summit include a discussion about whether the state’s open records law should spell out which records and information are always public and which are always confidential in investigations of alleged misconduct by public employees and in law enforcement investigations.

Open government review?

Schimel said lawmakers have said they wish to start studying the state’s open-government laws in the fall to see if any changes could be made, and said he would like to have recommendations ready before any legislative study committee is formed.

Lueders said Friday that he hopes a committee of lawmakers would not be formed to study the state’s open-government laws.

“I would be concerned it would be an instrument for the lawmakers who wanted to gut the open records law to, in fact, enact significant curbs on public information,” Lueders said.

Brett Healy, president of the free-market think tank MacIver Institute, said he wasn’t afraid of such a committee.

“The public hasn’t seen anything from the Legislature to suggest that changes are needed. If the Legislature really, truly believes there’s a problem, they have a responsibility to share with the public what the problem is and why changes are warranted,” Healy said. “I’m hopeful that if the Legislature follows through and forms a study committee, everyone will have a seat at the table and we can have an honest and open and deliberate conversation about the open records law and whether it needs to be changed.

“I think the Legislature realizes now, from the reaction to the proposed changes in the budget, the public is not going to allow less sunshine.”

Scot Ross, executive director of the liberal advocacy group One Wisconsin Now, said he would look at Schimel’s effort to update the laws “without prejudging, but just seeing how these folks have operated I think something that involves the Legislature and the governor at this point, people should have huge skepticism, given what they tried to pull on Wisconsin.”

Walker, through a spokeswoman, declined to be interviewed for this report.

Host of new issues

Schimel said the list of issues and situations to explore in advance of potentially updating the state’s open-government laws is “exhaustive,” ranging from elected officials attending public meetings via Skype to body cameras for police officers.

Schimel said one result of these talks could be local governments viewing open-government issues as more central to their operations and altering their budgets to accommodate the costs of fulfilling requests instead of asking those filing the requests to pay more.

“(Maybe we’ll) see government bodies understand that’s part of the cost of being a governmental body,” Schimel said. “So we could see positive changes that aren’t necessarily changes to the (open records) law.”

Schimel also noted that lawmakers now send drafts of documents or legislation to each other by email, which is public under the state’s open records law. He said he understood the spirit of one of the June proposals, which would have created an exemption for electronic communication that are considered part of the drafting or “deliberative” process.

“If that’s a record that is subject to public access, [someone might say] ‘There’s just an opportunity to make me look foolish when all I was trying to do was develop an idea,’ ” Schimel said. “I can understand what they are trying to accomplish, and I think we can look at that at the summit — is there a way to address the draft issue that doesn’t compromise public access?”

Lueders said even if a narrow exemption is applied for draft materials related to the state budget, for example, it could end up being applied widely and to other levels of government and “then we’ll be to the place that they tried to get to already.”

“The basic lesson that you learn from watching the open records terrain is, you give them an inch, they’ll take a mile,” Lueders said. “And what they tried to do with the proposals put into the budget was to take a mile.”

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Molly Beck covers politics and state government for the Wisconsin State Journal.