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5/7/2010 9:47:00 AM
State senator says public's correspondence is not open record
Names of citizens in constituent letters off limits, Miller says
Sen. Mark Miller
Sen. Mark Miller

Richard Moore
Investigative Reporter


State Sen. Mark Miller (D-Monona), whom The Lakeland Times has sued for an alleged open records violation, says the names of citizens who correspond with him over various issues have a blanket exemption under the state's open records laws.

The position conflicts with long-standing legislative tradition and directly contradicts a briefing book the state gives to every lawmaker. Times' publisher Gregg Walker says the newspaper will challenge such an exemption in court.

The Times sued Miller in April after 11 weeks passed without any response to an open records request made Jan. 15 for specific records, including correspondence between Miller's office and various public officials and environmental groups, as well correspondence and documents pertaining to Stewardship access requirements in the 2009 budget bill or to the Stewardship access rule the DNR is now promulgating.

Miller had acknowledged the original request in a Jan. 25 letter. However, in his response, the senator neither denied the request nor said he would fulfill it.

Nearly three months - 11 weeks - passed without any further communication from the senator, and that, Walker said, amounted to a violation of the law.

"Sen. Miller needed to deny the request citing a specific statute, or he needed to provide the records," Walker said. "He has done neither. We are patient, but it is clear that his delay is a tactic to evade the state's open records law."

Walker said timing was important because the Legislature - and in particular, a Senate committee chaired by Miller - was considering a proposed draft of a public access rule written by the Department of Natural Resources and approved by the Natural Resources Board.

After the Times filed the lawsuit April 14, Miller sent the records April 28.

Walker said this week the newspaper would continue to pursue the lawsuit, both to recapture already expended legal fees as well as to establish that long delays in providing records often thwart the intent of the open records law.

"Records delayed are records denied, especially on timely issues," Walker said. "We requested the records from Sen. Miller when the legislative committee he chairs was considering an important administrative rule. The public had a right to know what those documents contained, and they had a right to know while the process was ongoing."

Busy, busy

By the time Miller filled the request, the Legislature had adjourned for the session.

In his April 28 letter accompanying the records, Miller said he and his office had simply been too busy to complete the request, though he said his staff was working hard to do so.

"As you may know, my official legislative duties include co-chairing the Joint Committee on Finance, chairing the Senate Committee on the Environment and co-chairing the Senate Select Committee on Clean Energy in addition to representing the constituents of my district," Miller wrote. "My staff already had spent many hours preparing a response to your request at the time you filed your lawsuit, despite staff vacancies unfilled due to the state hiring freeze and a full legislative agenda, and has continued diligently since then to complete this response."

In fact, Miller charged the newspaper for 12 hours he said it took his office to locate the records, though he said his staff spent "countless hours" reviewing and organizing the records, hours for which the newspaper was not charged.

Walker rejected the contention that legislators can use the Legislature's schedule as an excuse to override the public records law.

"What the senator seems to be saying is, Don't expect any records requests to be fulfilled when the Legislature is in session," Walker said. "That's absurd on the face of it. Records need to be delivered while the Legislature is conducting business so the public can inspect and assess that information and have an opportunity to affect the outcome of the legislative process."

Walker said allowing lawmakers to sit on records for months would devastate the open records law and essentially turn the legislative process over to special interests.

"If the public cannot see what is going on in the Capitol - and looking at records and correspondence is a fundamental way for that to happen - until after the laws are passed and everyone has closed up shop and said 'adios' for the year, then the public is effectively closed out of the process," Walker said.

Walker said the law was clear that fulfilling requests had to be fulfilled responded as "soon as practicable and without delay" - which courts have long determined to be 10 days - and he said the law did so for a reason.

"They knew that allowing authorities to sit on records would cripple public participation," Walker said. "Mr Miller has attempted to do just that."

Constituent letters

Walker also said Miller's request was not only late but incomplete because the senator had redacted the names of citizens who had written to him expressing their viewpoints on the stewardship access issue.

While Miller said he was releasing the content of the letters, he said he was withholding the names of the citizens who wrote them. Such information, he said, was exempt from the state's open records law.

"The applicability of Wisconsin's Public Records Law to specific citizen contacts on a particular issue requires me to balance the strong public interest in disclosing the record against any applicable public interest favoring nondisclosure," he wrote. "Based on this assessment . . . I have determined that personal citizen information is not required to be produced under Wisconsin's Public Records Law."

However, that assessment directly contradicts the 2009-10 Wisconsin Legislator Briefing Book, which rules out blanket exemptions for lawmakers' records, saying only documents the statutes specifically exempt can be withheld, such as those documents and information governed by medical privacy, certain juvenile records and other such statutes.

"Much of the material in a legislator's office or kept by a legislator qualifies as a public 'record' under Wisconsin's Open Records Law," the briefing book states. "This material is required to be available for inspection and copying by the public, including the news media."

The briefing book specifically says citizens' letters are such open records.

"As an example, correspondence from and to a constituent is a public record and generally is open to inspection," the briefing book states. "Although per-sonal correspondence between individuals is usually thought to be private, legislators are public officials and correspondence with them is public, unless the Open Records Law provides a reason to deny access."

Accordingly, the briefing book states, the vast majority of records, including letters, are public.

"The general rule under the Open Records Law is that all records held by a legislator are open to the public unless a specific provision in the law allows the records to be kept confidential," the book states. "This rule embodies the public policy of the state that all persons should have the greatest possible information about the decisions and activities of state and local government. In practice, very few requests to inspect or copy records are denied."

Miller's position

Miller apparently doesn't agree.

He says the Wisconsin constitution endows lawmakers with both the right and the responsibility to receive input from citizens regarding governmental concerns and to undertake appropriate investigations or inquiries to resolve those concerns.

"The potential disclosure of personal citizen information would constitute undue interference with legislators' constitutional rights and responsibilities, would act as an unconstitutional barrier to free and open communication between legislators and citizens, and would chill free speech and debate in the legislative process," Miller wrote.

Miller said disclosure would also interfere with citizens' constitutional rights to petition their government, again by chilling free speech and debate and operating as a prior restraint of rights.

The senator asserts, too, that the constitution leaves it to each legislator to choose to withhold or release documents concerning citizens who contact him or her about issues of public policy.

The section of the constitution Miller cites for that assertion reads, in relevant part: "Each house shall keep a journal of its proceedings and publish the same, except such parts as require secrecy. The doors of each house shall be kept open except when the public welfare shall require secrecy."

What's more, Miller said, that principle was further exemplified by the Senate Policy Manual, which, he stated, exempts from disclosure information that identifies, discusses or refers to proposed legislation that has not been introduced into the legislative process.

Besides all that, Miller contended, even if the records were subject to the open records law, it was still his opinion that, in a balancing test, the public interest in disclosing names was outweighed by the public interest in protecting the confidentiality of that information.

"Citizens must have total freedom to contact me on issues of concern to them, without fear that their personal citizen information will be made public and that they will be put at risk for harassment, reprisal, identity theft, etc."

A prescription for secrecy

Walker said the newspaper was eager to contest Miller's assertions in court.

"What his arguments amount to are a prescription for a secret government," Walker said. "It would be a government in which lawmakers could hide behind closed doors and sealed documents to pass laws and carry out government functions."

For one thing, Walker said, the Wisconsin constitution never expressly gives lawmakers any such right to choose on their own what records are public, and the secrecy section the senator cited clearly refers only to the journal of proceedings of each chamber, not to staff and other documents, including correspondence.

"The Senate Policy Manual provision is likewise irrelevant in this situation because the names he redacted discussed an administrative rule already introduced into the legislative process, not some idea that had not been proposed," Walker said.

In any event, Walker said, the policy manual did not intend such exclusions to extend to constituent correspondence, as evidenced by the clear language of the Legislator Briefing Book.

Miller's viewpoint would prohibit the public from judging the amount of support a certain measure might have, Walker said.

"If a legislator claims he has received letters of support for a rule developed, for example, by the DNR, how do we know those 300 'constituents' aren't also DNR employees and not average citizens," Walker said. "Mr. Miller's way would allow special interests to poison and corrupt the very notion of constituent correspondence."

Finally, Walker said, if Miller's logic were to be applied to the open meetings law, lawmakers would be able to hold closed sessions any time citizens appeared to support or oppose legislation, simply by proclaiming the need to protect their confidentiality.

"A written letter of support or opposition to a particular matter is not - and should not be construed to be - any different than a verbal statement of support or opposition at a public meeting," Walker said. "Mr. Miller's logic leads to the preposterous conclusion that 'free and open communication,' as he puts it, can only occur secretly. Talk about a chilling effect on open government - Mr. Miller's positions are the very definition of it."



Reader Comments

Posted: Friday, May 7, 2010
Article comment by: S

Just what is this man trying to hide? Makes one wonder.



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