Here & Now

Brendan Fischer Discusses Open Records Case Against Senator

Frederica Freyberg:

Now to the issue of open records compliance at the state Capitol.

The question is are Wisconsin legislators immune from an open records lawsuit as long as they’re in office. That’s what Attorney General J.D. Van Hollen says in the case of Republican state senator Leah Vukmir. Vukmir is being sued by the Center for Media and Democracy which seeks materials under Wisconsin's open records laws relating to her work on the American Legislative Exchange Council, or ALEC. The lawsuit claims the senator has failed to release all documents. But Van Hollen, whose office represents lawmakers, says, Wisconsin’s Constitution provides that members of a legislature shall not be subject to any civil process during the session of the legislature. Besides which, Senator Vukmir says she has complied with the open records requests saying, “I have met my obligations regarding the requests sought. I do not believe legislators are above the public records law. My position is that I have fully complied with the public records law and have produced all records subject to this open records request, as I have done with the five previous requests from the Center for Media and Democracy since the beginning of April.

Senator Vukmir referred further inquiries to the Department of Justice. We invited Attorney General Van Hollen to join the discussion. He declined. Center for Media and Democracy attorney Brendan Fischer filed the lawsuit against Vukmir. He joins us now. Thanks very much.

Brendan Fischer:

Hi. Thanks for having me.

Frederica Freyberg:

Senator Vukmir, as we just heard in her statement, says she complied with your records request five times. So why did you file suit?

Brendan Fischer:

This suit actually arises from two requests that we made earlier this year surrounding ALEC's meeting in Oklahoma which was held in early May. Senator Vukmir is a member of the national board of ALEC. She attended this meeting and she also sponsored a bill at that meeting. She brought a bill to the meeting for adoption as a model, and we know that it was adopted. But in response to our requests both before the meeting and after the meeting she asserted she had no records except for a few e-mails showing that she actually attended the meeting, and a few text messages. And that just defies belief, that she would not have a single record in her office, considering her leadership position in ALEC, and considering that she sponsored the bill at the meeting. So we brought the lawsuit. And we think the proper place to resolve this is in court, and we are hoping that Senator Vukmir will actually appear in court and allow us to make our arguments and she can make her arguments there as well.

Frederica Freyberg:

What are you trying to find out with your open records request and that lawsuit?

Brendan Fischer:

Sure, Well, so ALEC is a really influential lobbying organization in our review. They bring state legislators together with corporate interests, lobbyists for special interests, and they promote model legislation. It's had a significant influence in Wisconsin and around the country. Press are largely barred from these meetings, particularly the part of the meeting where they adopt model legislation. There's corporate-sponsored parties, legislators attend these meeting on what they call a scholarship, which means that the same corporate interests that benefit from the introduction of ALEC model legislation also pays for legislators flights and hotel rooms. So there is a huge opportunity for special interest influence to take place at these meetings. And because they operate in such secret, open records requests is one of the only way we've had any idea of how ALEC operates and what their relationship is with state legislators in Wisconsin.

Frederica Freyberg:

What’s your reaction to Attorney General Van Hollen’s position that Senator Vukmir, and by extension all other legislators, are immune while they are in office to open records requests or lawsuits?

Brendan Fischer:

Sure, it’s a really shocking assertion. And it's a very dramatic change, it's a radical reinterpretation of this constitutional provision. There is a provision in the constitution saying that legislators are immune from suit while the legislation is in session, and traditionally that been understood to mean when the legislature is actually meeting, during the floor session. And past Attorney Generals have made this argument. What Attorney General Van Hollen is doing in this case is arguing that the provision applies during the entire two-year biennial session, which means you can never be sued for this entire two-year period. And really, you can never be sued ever, because as soon as one two-year session ends the next one begins. So what this would mean if this interpretation were upheld is that you could never enforce the open records law, which makes it entirely operational. And basically blows it up and undermines Wisconsin's long-standing commitment to transparency and open government.

Frederica Freyberg:

We only have less than a minute left, but your lawsuit claims that ALEC puts disclaimers on its documents saying that they’re not subject to open records laws. It is a private entity though. Why can't they protect their own product?

Brendan Fischer:

Well, they can protect their own product as long as they're not communicating with legislators. Once they're communicating with legislators in their official capacity, and trying to influence legislators and legislation, then that becomes a public record and the public has a right to have access to it. The basic idea undermining– The basic idea behind the public records law is that our elected officials are acting on our behalf and we need that level of transparency to make sure they’re acting on behalf of our interests rather than on behalf of special interests like ALEC.

Frederica Freyberg:

All right. Brandon Fischer, thanks very much.

Brendan Fischer:

All right. Thank you.