Your right to know: Lawsuit put end to abusive practice

Arn Pearson

By ARN PEARSON

Wisconsin’s open records law applies to all records requests, big or small. But under former Attorney General Brad Schimel, the Wisconsin Department of Justice implemented a restrictive policy that limited access based on the number of potentially responsive emails.

After being sued by the Center for Media and Democracy (CMD), the Justice Department rescinded its policy and turned over hundreds of records concerning the Affordable Care Act.

The case began last summer, when CMD asked for all records and communications regarding the ACA involving the Attorney General’s office and the Wisconsin solicitor general. The request covered an eight-month period.

At that time, Wisconsin held a leading role in a multi-state lawsuit aimed at striking down the ACA and eliminating health coverage for pre-existing conditions.

The department acknowledged identifying 1,940 records potentially responsive to CMD’s request, but claimed it would be “excessively burdensome” to review and redact them. It also claimed the request was not reasonably limited as to subject matter or time. It denied the request.

CMD filed suit in response and, in the course of the litigation, learned that Schimel’s office had adopted a policy of rejecting open records requests based on an arbitrary 500-email threshold.

The DOJ’s rule pertained to potentially responsive emails, not actually responsive emails. Requesters are then pressured to narrow the scope of their request.

The problem? While the open records law does require requests to have “a reasonable limitation as to subject matter or length of time,” there is no “burdensomeness” exception, and the 500-email threshold is not recognized anywhere in state law.

In May, the department backed off in a settlement with CMD that states the policy “is no longer in place and that references to this policy have been removed from the Department of Justice website.” The change came after the state elected a new attorney general, Josh Kaul.

“This is a victory for the public and journalists, and recognizes that Schimel’s policy went too far in denying the public’s right to know,” says Christa Westerberg, an attorney representing CMD. Westerberg also serves as co-vice president ofthe Wisconsin Freedom of Information Council.

In addition, Kaul’s Justice Department has affirmed that public officials cannot defeat Wisconsin’s open records law by using private email or other digital dodges. There has been a growing national trend in which major influence operations, such as the Republican Attorneys General Association (RAGA) and American Legislative Exchange Council (ALEC), use online apps or members-only portals to evade state records retention and freedom of information laws.

In RAGA’s case, corporations that donate $25,000 or more are able to purchase access to an online site called the “Briefing Room,” where Republican AGs and their staff may review policy documents, draft briefs and regulatory letters, and convene regular policy conference calls using RAGA’s 501(c)(4) arm, the Rule of Law Defense Fund.

But the CMD-DOJ settlement says materials that otherwise meet the definition of records are “not exempt from disclosure by virtue of their location on private email accounts, online apps, or file-sharing services.”

Documents obtained by CMD concerning Schimel’s ACA litigation will be analyzed and published on the group’s websites, ExposedbyCMD.org and PRWatch.org.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Arn Pearson is executive director of the Center for Media and Democracy, a nonprofit investigative watchdog group focused on corporate influence and money in politics.

Comments are closed.

  • Editorial cartoon

    July 11th, 2019
    by

    […]


    Letter to the editor: Much prayer given for Ontario’s special day

    July 11th, 2019
    by

    Have you ever paused … perhaps I use a more emphatic word … STOPPED to believe something?


    Letter to the editor: 5G towers emit microwaves

    July 11th, 2019
    by

    There is something new on the horizon. AT&T joined forces with Bug Tussle to bring the world-touted 5G to our doors.


    Letter to the editor: Take time to help children in detention centers

    July 4th, 2019
    by

    Concentration camps. I’m sure you’ve heard these words in the news lately. They’ve been around since medieval times and are still being used today.


    Letter to the editor: Thanks for ‘Backtalk’ comments regarding Ruth Beaver Kramer

    July 4th, 2019
    by

    On behalf of my family, I’d like to thank you for the lovely tribute to my mother, Ruth Beaver Kramer.


  • Letter to the editor: Unexpected … ‘Carry on, soldier’

    July 4th, 2019
    by

    Through our lives, we face many things. No one knows what that could bring. Challenges we can accept.


    Letter to the editor: Mainstream media is not systematically publishing ‘fake news’

    July 4th, 2019
    by

    A friend recently showed me a letter sent by the Republican National Committee. Headed “2019 Congressional District Census,” it is signed by Ronna McDaniel, chairwoman of the RNC.


    Letter to the editor: Patriotism

    July 4th, 2019
    by

    During his June meetings with Russian President Putin and North Korea’s Kim, and for the second time since he became president, Donald Trump revealed himself to be a traitor. 


    Letter to the editor: Parking rules for Ontario’s July 4 celebration

    June 27th, 2019
    by

    The upcoming Independence Day celebration is coming to Ontario. Parking, like always, will be at a premium in Ontario over the Independence Day festivities.


    Letter to the editor: President Trump has an uplifting message

    June 27th, 2019
    by

    Last Tuesday, President Trump kicked off his reelection campaign with a rally of more than 20,000 patriots in attendance, and thousands watched from outside after more than 100,000 requested tickets.


    Letter to the editor: Monroe County Board should stop unchecked nonmetallic mining

    June 20th, 2019
    by

    I was invited to attend the Monroe County hearing on ordinances for nonmetallic mining.


  • Facebook

  • [Advertisement.]
  • Archives