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A glimmer of light in a Dark State

April 17, 2020

Of all the Sunshine Weeks we have covered, this is simultaneously one of the most discouraging ones and one of the best ones. 

To say it another way, there’s a lot of bad things happening out there in the arena of transparency, but, in one sense, there is also a glimmer of hope. It is always the darkest before the dawn, and that may well be the case here.

It doesn’t take very long to grasp why these are dark days in a dark state. Just look at our Sunshine Week grades and look at who gets the worst grades — the governor of the state, the entire Legislature as a body, and a judge who symbolically represents the state’s judiciary.

That’s right, the governor and the Legislature — the people who make our laws and enforce them — are the biggest proponents of the Dark State, the biggest enemies of openness.

Just how could this have possibly happened, and what does it mean for open government?

To be sure, the Legislature has for years now consistently opposed transparency and not just passively. It exempts itself from records retention laws, which effectively exempts that body from the open records law; it thwarts open records requests any way it can; and it refuses to release investigative records about its members and staff.

But they are all committed to transparency. Just ask them.

When both the state’s legislative and executive branches are so entrenched in opposition — if anything unites the two political parties, it’s that opposition — two nightmarish scenarios are likely to play out.

First, sooner or later, they will gut the open government laws completely. That’s just what lawmakers and then Gov. Scott Walker tried to do in 2015. Back then, they did it so brazenly and radically — it was a virtual repeal of the open records statutes — that they provoked a fierce rebellion among the populace, and backed down.

Their failure has not stopped them from trying, though, and so instead the Legislature and the governor chip away here and there, trying to deliver death by a thousand cuts. There are lawmakers poised to take away online court records, to expand records exemptions in general, and to increase costs for citizens seeking records — records they have already paid for with their taxes.

The second ramification of having such opposition in the Legislature and in the governor’s office is the bad message it sends to local officials. If the Legislature isn’t going to follow the law, if the governor isn’t going to follow the law, why should they? Our elected state officials set a tone, after all, and it’s not a pleasing one that emanates from Madison these days.

As officials everywhere work in increasing secrecy under the cover of Madison’s darkness, citizens committed to a transparent government must go to court to open the doors to the government they supposedly own.

And that’s a mixed bag. There are some decent court rulings, to be sure — to cite just one example this past year, an appeals court determined that requesters have the right to receive digital records if they exist, and that’s a huge cost saver for those requesting records — but there are a slew of bad decisions, too.

What’s most concerning about the judicial trend is that, in the bad decisions, judges are actively rewriting the law, and not for the better. We have reported on Oneida County judge Michael Bloom’s attempt to allow government bodies to meet in secret to discuss almost any topic except under the narrowest circumstances, but courts across the state, including the state Supreme Court, are doing the same thing.

To cite just one example, the Supreme Court allowed officials to withhold records of those who had voted midway through a three-week union election when the union requested them because, according to the court, union officials might have used those records to pressure those who had not yet voted.

That decision effectively rewrites the statute because it allows the motivations, or potential motivations, of requesters to be considered in an open records request, contrary to the plain language of the law, namely, that an open record is open to anyone and for any reason.

Of course, the Legislature could take action by passing new language that would underscore its true intent and render such court decisions null and void, but, given the hostility to transparency in the Legislature, that is not going to happen.

It all sounds pretty bleak, and it is, but it brings us to our glimmer of hope. Because Oneida County sheriff Grady Hartman and his department is taking open government laws seriously, the Rhinelander city administrator, Daniel Guild, is now facing a felony charge for misconduct in office.

That a law enforcement agency would take an open records complaint so seriously is a huge event. Every law enforcement agency and government should take such complaints seriously, but they don’t. Indeed, we cannot remember another instance in which a law enforcement agency executed search warrants over such a complaint.

We stress, as we have before, that none of this is to convict Mr. Guild in the pages of this newspaper. The important point is not Mr. Guild’s ultimate innocence or guilt but that a law enforcement agency, after finding probable cause, acted forcefully and recognized the importance of enforcing the open government laws.

At the end of the day, the only way to combat the growing resistance to open government is to make those who intentionally break the law suffer serious legal consequences. 

The Oneida County sheriff’s office, and now prosecutor Michael Schiek, are delivering that very message — there will be real consequences if you break open government laws in Oneida County — and hopefully other law enforcement agencies and prosecutors will echo that message across the state.

Ideally, the real solution would be to statutorily increase the penalties for intentional violations of the open government laws. Right now, an open meetings violation is simply a forfeiture of between $25 and $300.

A public records infraction may involve criminal penalties for destruction, damage, removal, or concealment of public records with intent to injure or defraud, or for altering or falsifying public records, but all other infractions involve civil forfeitures.

Those laws should be amended so capricious withholding of records or intentionally violating the open meetings laws become criminal charges rather than civil forfeitures, with the most serious infractions automatically classified as felony misconduct in office.

That would provide an effective deterrent, especially because complainants can bypass district attorneys and head to court themselves if they follow proper procedures. Sadly, there’s no chance in today’s anti-transparency environment that such amendments to the law will happen.

That leaves one other deterrent: you, you, and you — all of us.

That’s a glimmer of hope, too, because in the past few years we have seen the citizenry rise up, both locally and statewide, to demand clean and open government. When then Gov. Walker and the Legislature tried to effectively repeal the entire open records laws, the public rebelled with such furor that they backed down.

We have seen such fervor on the local level, too, where citizens have engaged to open up and clean up their town governments. To cite just one example, and a model one, citizens took a stand over several years to change the way their town government worked. Such leaders as Jeff Long, Barbara Boston, Laura Bertch and others deserve kudos for rallying their fellow citizens for change and openness.

In the end, they won and they provide a model for others to follow. If they can do it in Boulder Junction, citizens everywhere can do it, too.

That also means every candidate of every party — both locally and statewide — should face questions about their commitment to transparency. Sheriff’s candidates must be pressed whether they will take the open government laws as seriously as sheriff Grady Hartman does; legislative candidates must be pressed on whether they will subject themselves to open government laws; judicial candidates, too, must commit to faithful interpretation of the laws as they exist and the intent behind them — the broadest presumption of openness — rather than rewriting those laws to favor obstructionists.

Open government must become the battle cry. Neither liberals nor conservatives nor anyone across the political spectrum will be served well by a closed process. 

That’s because those making policy behind closed doors never ultimately favor any group except their own. They will favor their own power at the expense of all others, and that is always what happens when the ends are allowed to justify the means.

Open government must be a first and uniting principle, and the citizenry at every level must engage and demand that every candidate and every official and every governmental body embrace that platform. For without that principle, no other democratic principles will stand.

That is the task at hand, and may that it work for all our sakes.

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