Here & Now

Lueders Expresses Concern For Public Records Changes

FREDERICA FREYBERG:

WISCONSIN HAS A LONG HISTORY OF LAWS PROTECTING THE RIGHTS OF CITIZENS TO ACCESS AND VIEW PUBLIC RECORDS. THE FIRST OPEN RECORDS LAW WAS ENACTED IN 1917, WITH THE STATE’S MODERN-DAY LAW PASSING IN 1981. NOW, THIS PAST SUMMER THERE WAS PUBLIC OUTCRY WHEN REPUBLICAN LAWMAKERS TRIED TO GUT THE OPEN RECORDS LAWS AND LAWMAKERS RESCINDED THOSE PROPOSED CHANGES. BUT NOW COMES A NEW TWIST ON MAINTAINING AND KEEPING RECORDS OPEN IN WISCONSIN, BECAUSE THE WALKER ADMINISTRATION IS SAYING IT DOESN’T HAVE TO KEEP TEXT MESSAGES, AS THEY FALL UNDER A NEW DEFINITION OF TRANSITORY RECORDS. AT IMMEDIATE ISSUE, AN OPEN RECORDS REQUEST RELATING TO THE FAILED HALF MILLION DOLLAR STATE BUSINESS LOAN TO A TOP WALKER DONOR. THE DEPARTMENT OF ADMINISTRATION DID NOT KEEP TEXT MESSAGES CONNECTED TO THE LOAN, SAYING IT WAS NOT REQUIRED TO DO SO. THE WISCONSIN STATE JOURNAL EDITORIALIZED THIS WEEK, THAT, QUOTE, THAT’S A NOVEL AND VAGUE EXCUSE FOR HIDING THE PUBLIC’S BUSINESS. BUT THAT’S NOT THE ONLY EXAMPLE OF TRANSITORY RECORDS NOT BEING AVAILABLE FOR PRODUCTION TO OPEN RECORD SEEKERS. WE DIVE INTO THIS TOPIC NOW WITH PRESIDENT OF THE WISCONSIN FREEDOM OF INFORMATION COUNCIL BILL LUEDERS. THANK YOU FOR BEING HERE.

BILL LUEDERS:

THANK YOU FOR HAVING ME.

FREDERICA FREYBERG:

WHAT IS THE COUNCIL’S POSITION ON WHETHER OR NOT TEXT MESSAGES ARE TRANSITORY AND NOT REQUIRED TO BE KEPT?

BILL LUEDERS:

OH, THEY CLEARLY SHOULD BE KEPT. THEY SHOULD BE ARCHIVED. IF PUBLIC OFFICIALS ARE USING TEXT MESSAGES COMMUNICATING ABOUT OFFICIAL BUSINESS, THOSE SHOULD BE RETAINED. THIS EXEMPTION FOR TRANSITORY RECORDS, WHICH SUPPOSEDLY COMES FROM THE AUTHORITY OF THE PUBLIC RECORDS BOARD AND HOW THEY’VE AMENDED THEIR POLICY, WAS ALSO CITED TO DENY ACCESS TO VISITORS LOG RECORDS AT THE EXECUTIVE RESIDENCE WHEN A GROUP REQUESTED THOSE. THE GOVERNOR SAID WE DON’T HAVE THOSE BEYOND A CERTAIN POINT IN THE PAST. WE DON’T HAVE TO KEEP THOSE ANYMORE. THOSE ARE TRANSITORY RECORDS. WE CAN DESTROY THEM AT WILL. SO IN BOTH THESE SITUATIONS THEY’RE CLAIMING BROAD AUTHORITY TO DESTROY RECORDS AT WILL BY SAYING THAT THEY’RE TRANSITORY RECORDS THAT THEY DON’T NEED TO KEEP.

FREDERICA FREYBERG:

HOW DOES THAT STRIKE SOMEONE LIKE YOURSELF WHO IS IN FACT THE PRESIDENT OF THE FREEDOM OF INFORMATION COUNCIL?

BILL LUEDERS:

IT’S OUTRAGEOUS. IT’S PART OF A SERIES OF ATTACKS ON OPEN GOVERNMENT IN WISCONSIN. I MEAN IF YOU GIVE PUBLIC OFFICIALS THIS AUTHORITY, IT’S GOING TO BE ABUSED. MAYBE THESE ARE ABUSES ALREADY. CERTAINLY THOUGH IN TIME, GIVING PUBLIC OFFICIALS THE AUTHORITY TO DESTROY RECORDS IF THEY DECIDE THAT THEY’RE TRANSITORY IS GOING TO LEAD TO ABUSES.

FREDERICA FREYBERG:

I DON’T MEAN TO TAKE THIS TOO FAR AFIELD BUT WHAT DO YOU KNOW ABOUT HOW WISCONSIN’S RULES ON THIS COMPARE TO OTHER STATES? I MEAN, TEXT MESSAGES, HOW ARE THEY BEING TREATED?

BILL LUEDERS:

WELL, DIFFERENT STATES DO IT DIFFERENT WAYS. WISCONSIN HAS PRETTY GOOD RECORDS AND MEETINGS LAWS. AND OUR RECORDS LAW, ALTHOUGH IT COULD USE A LITTLE UPDATING HERE AND THERE, DOES COVER ELECTRONIC RECORDS AND IT SHOULD COVER TEXT MESSAGES. WE’VE SEEN IN OTHER PLACES, THE MAYOR OF DETROIT, FOR INSTANCE, WAS BROUGHT DOWN BECAUSE OF TEXT MESSAGES THAT WERE TURNED OVER IN RESPONSE TO A RECORDS REQUEST. SO OTHER STATES DO FIND A WAY TO MAINTAIN THESE.

FREDERICA FREYBERG:

NOW, YOU DO MAINTAIN THAT THERE IS KIND OF THIS NEW DEFINITION OF WHAT CONSTITUTES A TRANSITORY RECORD.

BILL LUEDERS:

YES.

FREDERICA FREYBERG:

HOW SO? AND HOW MUCH BROADER IN YOUR MIND IS IT?

BILL LUEDERS:

WELL, ON AUGUST 24, THE PUBLIC RECORDS BOARD, THE GROUP OF EIGHT INDIVIDUALS, DID PASS A CHANGE TO THE DEFINITION OF TRANSITORY RECORD. AND THIS IS THE NEW LANGUAGE THAT IS BEING CITED BY GOVERNMENT OFFICIALS IN MAKING THESE DENIALS. NOW, I DON’T BELIEVE THAT THE PUBLIC RECORDS BOARD INTENDED TO EXEMPT TEXT MESSAGES. THE CHANGE THAT IT MADE DOES NOT SAY THAT TEXT MESSAGES ARE INCLUDED IN THE CATEGORY OF TRANSITORY RECORDS. BUT IT IS BEING USED TO THAT PURPOSE. ALSO, THE PUBLIC RECORDS BOARD APPROVED THIS WITHOUT CLEARLY PUTTING ITS INTENTION TO DO SO ON A MEETING AGENDA. IN MY MIND IT WAS AN ILLEGAL ACTION BECAUSE IT WAS NOT PROPERLY NOTICED. AND I HOPE THAT IT IS CHALLENGED. AND I HOPE THAT THE DECISION OF THE PUBLIC RECORDS BOARD TO AMEND THIS LANGUAGE IS OVERTURNED IS IMPROPER.

FREDERICA FREYBERG:

HIGH IRONY THAT THE PUBLIC RECORDS BOARD IN YOUR ESTIMATION FAILED IN ITS DUTY TO POST THIS?

BILL LUEDERS:

I THINK THEY’RE BEING TAKEN ADVANTAGE OF. I DO THINK THAT THEY BROKE THE LAW IN TERMS OF NOT PROPERLY REFERENCING THIS. PARTICULARLY GIVEN THE SIGNIFICANCE OF THIS LEGISLATION. OUR COURTS HAVE SAID THAT PARTICULARLY IN CASES WHERE THERE IS A HIGH PUBLIC INTEREST IN THE ACTION OF A PUBIC BODY, YOU HAVE A HEIGHTENED RESPONSIBILITY TO MAKE SURE THAT YOU NOTICE IT SPECIFICALLY AND PEOPLE FROM THE OUTSIDE CAN SEE WHAT IT IS YOU INTEND TO DO. BUT THEY ARE APPLYING IT IN A WAY THAT I THINK IS BROADER THAN WHAT THE BOARD INTENDED. AND THE BOARD NEEDS TO STEP UP AND INSIST THAT THEY STOP.

FREDERICA FREYBERG:

WELL, LET ME READ THIS. MATT BLESSING, THE CHAIR OF THIS BOARD OF WHICH YOU SPEAK, THE STATE PUBLIC RECORDS BOARD, SENDS US THIS STATEMENT ON THE BOARD’S ROLE IN DEFINING TRANSITORY RECORDS. HE SAID, QUOTE, AT ITS AUGUST 24 MEETING, THE PUBLIC RECORDS BOARD APPROVED ROUTINE CLARIFICATION, HE SAYS, OF AN EXISTING DEFINITION OF TRANSITORY RECORDS BY EXPANDING THE NUMBER OF EXAMPLES CITED FOR TRAINING PROVIDED TO GOVERNMENT EMPLOYEES. CONTRARY TO SOME STATEMENTS IN THE MEDIA, NO SWEEPING CHANGES WERE MADE TO ANY STATE ELECTRONIC RECORDS POLICIES. SO WHAT ABOUT THAT?

BILL LUEDERS:

WELL, IT’S TRUE THAT THE CHANGES DID NOT GIVE THE STATE THE AUTHORITY TO DO THE THINGS THAT IT’S DOING. BUT THE STATE HAS SEIZED UPON THAT CHANGE AS GIVING IT NEW AUTHORITY. AND WHETHER MATT BLESSING LIKES IT OR NOT, THE ACTION THAT WAS TAKEN BY HIS BOARD IS BEING APPLIED IN A BROAD AND SIGNIFICANT WAY.

FREDERICA FREYBERG:

AND SO YOU WORK ON BEHALF OF CITIZENS AND REPORTERS WHO ARE SEEKING RECORDS. WHAT ARE REPORTERS SAYING ABOUT ALL OF THIS TO YOU?

BILL LUEDERS:

THE WISCONSIN NEWSPAPER ASSOCIATION HAS BEEN AT THE FOREFRONT OF SPEAKING OUT AGAINST THIS CHANGE REGARDING TRANSITORY RECORDS. OBVIOUSLY, THEY ARE ADVOCATING FOR THE PUBLIC’S RIGHT TO CONTINUED ACCESS TO THIS INFORMATION. THE REPORTER WHO MADE A REQUEST FOR A TEXT MESSAGE INVOLVING A COMMUNICATION BETWEEN A STATE OFFICIAL AND A COMPANY THAT CAME TO THE GOVERNMENT HAT IN HAND IS CONCERNED ABOUT BEING TOLD THAT WE DON’T HAVE TO GIVE YOU THE RECORD BECAUSE WE DESTROYED IT. I THINK CITIZENS ACROSS THE STATE SHOULD ALSO BE CONCERNED ABOUT THIS EROSION OF OUR TRADITION OF OPEN GOVERNMENT ONE ATTACK AT A TIME.

FREDERICA FREYBERG:

SOME OF THESE REQUESTS ARE IN THE COURTS RIGHT NOW AND PERHAPS THEY’LL BE RESOLVED THAT WAY?

BILL LUEDERS:

YES. THERE IS A LAWSUIT THAT’S PLAYING OUT OVER ANOTHER THING THAT THE WALKER ADMINISTRATION HAS DONE, WHICH IS CLAIMING THAT THERE’S A DELIBERATIVE PROCESS EXEMPTION FOR COMMUNICATIONS THAT OCCUR WHILE THEY’RE WORKING OUT THE DETAILS OF WHAT GOES INTO THE BUDGET BILL, PRESUMABLY OTHER KINDS OF LEGISLATION, THAT THOSE COMMUNICATIONS ARE SOMEHOW NOT SUBJECT TO THE PUBLIC RECORDS LAW BECAUSE THERE’S THIS DELIBERATIVE PROCESS THAT THEY’VE CONJURED UP OUT OF NOTHING. THEY’RE BEING SUED FOR THAT. THAT’S IN THE COURTS RIGHT NOW. I DO THINK THAT THERE WILL BE AGITATION AGAINST THIS TRANSITORY RECORD DEFINITION AND THE FACT THAT THE PUBLIC RECORDS BOARD APPROVED IT WITHOUT PROPER NOTICE. SO THERE ARE WAYS TO FIGHT BACK. AND I HOPE THAT MEDIA AND THE CITIZENS OF THE STATE AVAIL THEMSELF OF ALL OF THOSE WAYS.

FREDERICA FREYBERG:

ALL RIGHT. BILL LUEDERS, THANKS VERY MUCH.

BILL LUEDERS:

THANK YOU.