Citing a nearly 50 year old statutory exemption, state Sen. Jim Holperin (D-Conover) has begun the routine deletion of many of his office emails, the senator informed The Lakeland Times after the newspaper made an open records request.
Holperin cited a 1961 statute exempting the records and correspondence of lawmakers from the permanent use collection of the state's public records board.
Among others, the newspaper had asked on June 15 for email communications between Holperin and then DNR water division administrator Todd Ambs.
The newspaper had acquired several email exchanges between the two through an open records request to the DNR. However, when Holperin responded to the June 15 request, he provided the newspaper one letter from him to DNR secretary Matt Frank and none of the exchanges with Ambs.
"After extensive searching of our records and files, the only document we have in our possession that falls under your request is attached," Holperin wrote to Lakeland Times publisher Gregg Walker on July 14.
Because of the exchange obtained from the DNR, that prompted Walker to ask Holperin why he not supplied those emails and also had not denied them.
In an Aug. 2 response, Holperin said he provided all the records in his possession at the time of the request.
"That fulfills my duty under the open records law," Holperin said. He also said his office had begun not to retain many emails.
The senator cited a little-known public records board statute that exempts legislators' records and correspondence from those state records that must be preserved "for permanent use."
"You have raised questions regarding the retention of Senate records," Holperin wrote to Walker. "On advice of the Senate Chief Clerk and pursuant to Senate Policy and (statute) 16.61(2)(b)1, my current office policy is to not retain emails that are judged not to be substantive exchanges."
Holperin said there were certain exceptions to that policy, including emails subject to a pending open records request.
"Regular deletions pursuant to this office policy prevent unnecessary demands on legislative computer system capacity," Holperin wrote. "This policy has dramatically reduced the number of electronic exchanges compared to what we have previously had on hand."
Holperin's policy is apparently a new one, given his response that the policy had reduced the number of emails his office stored.
Earlier this year, in fact, Holperin had supplied the newspaper with a substantial number of emails from an earlier open records request.
In those emails Holperin wrote to Beth Tornes, a grant writer at the Great Lakes Inter-Tribal Council, about the amount of tax increases in last year's state budget bill, saying "the Governor's got enough little tax and fee hikes in that budget of his to sink a good sized battleship."
The new policy seemingly conflicts with the state's 2009-10 Wisconsin Legislator Briefing Book. The chapter on open records, written by a senior staff attorney for the Wisconsin Legislative Council, makes no mention of chapter 16 or any complete legislative exemption.
In fact, the briefing book advises that most legislative records are public. However, it does not address the issue of how long such records must be retained.
"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."
As an example, the briefing book states, correspondence from and to a constituent is a public record and generally is open to inspection, as well as most records of a legislator.
"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 briefing 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."
The briefing book advises lawmakers of eight specific exemptions they can use to deny records. However, 16.61(2) specifically excludes all records and correspondence of a legislator from the definition of a public record to be preserved.
The email exchange
Holperin apparently did not deem the email exchange between him and Ambs to be substantive, according to his policy.
In the Aug. 20, 2009, exchange, Ambs had been trying to reassure Holperin that a proposed library expansion in Minocqua would be able to proceed despite new shoreland administrative rules that limited impervious surface amounts within 300 feet of an ordinary high water mark.
The library and town community center sit within that perimeter and could not meet the terms of the revised NR115. But Ambs said the library expansion could proceed under the old rule.
"If the rules were already in place and everyone knew what to expect (i.e. the folks working on the library expansion knew the parameters of NR115 before they put their plans together) then I would say that the new NR115 would not allow them to expand without getting a specific variance for the project," Ambs wrote in an email.
Having said that, he continued, he was "quite comfortable" that the project could continue under the old rule.
"First, as you are well aware, the new rule isn't in place yet and won't be until the Legislative review is finished," Ambs wrote. "Second, the new rule specifically gives the county two years to rewrite their ordinance. As long as all the permits for the library were approved prior to the new rule going into effect, they would not be subject to the new rule."
But, Ambs cautioned, property owners within the 300-foot zone who did not have plans underway should not expect to be able to substantially expand their impervious surfaces later.
"In short, I believe that the rule intends to prevent expansion of impervious surface on lots in Water Quality Management Areas (note that the library is quite close to the lake - about 175 feet according to our staff)," he wrote. "Once the new rule and applicable new county ordinances are in place, owners of property in Water Quality Management Areas should plan accordingly to protect water quality."
Ambs did not want his conclusions circulated publicly.
"I would ask that you not forward this message to the 'library folks' since it is only part of the story and could be taken out of context," he said. "I will have something more detailed in writing to share with them but I think we have two different issues here."
Holperin was happy to comply with Ambs' request.
"Thanks for this," he replied. "I understand the library can go ahead under the old rule . . . and probably will . . . and that's the message that will go out for public consumption."
Still, Holperin said he was bothered by the second message delivered by Ambs about what property owners might or might not be able to do later.
"However, the larger issue of 'the future' under NR115 is that this project would simply not be allowed," he wrote. "Sure, the town could request a variance from the county, and might get it depending on how strictly the county feels it must be (or is allowed to be) in endorsing the shoreland ordinance."
But, he said, the library project would be denied under the new rule simply because it was in Minocqua and that, he said, wasn't right.
"If the library expansion were occurring in Madison or Milwaukee or Rhinelander or Eagle River or Crandon . . . it gets the go-ahead," Holperin wrote. "Well, of course, this is just not fair and simply cannot be justified. Either all downtowns by water should have these new building projects restricted . . . or none of them should."
That said, Holperin implored Ambs and the DNR to at least discuss exempting "little downtowns" such as Minocqua from NR115. And, he said, he had an even more appropriate solution.
"Or, better yet, will you join me in applying the rule everywhere, including incorporated areas," he asked Ambs. "Why should Madison be exempt, exactly?"
Richard Moore can be reached at email@example.com.
Posted: Thursday, August 19, 2010
Article comment by:
Is anyone surprised at his actions? The only reason someone would do this is they are hiding something. Its the only reason. So what is he hiding that he doesn't want the public to see? Vote this clown out!! great reporting on this!
Posted: Wednesday, August 18, 2010
Article comment by:
One question...when is the next election? I would be sure to go out and vote...and vote Sen. Holperin OUT!
Posted: Wednesday, August 18, 2010
Article comment by:
Jack E Lohman
So, the Dems are as corrupt as the R's? They must all be thrown out in November and we should start from scratch with all independents.