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Broken Records: Evers’ transparency troubles

By M.D. Kittle

MADISON — Despite promising to uphold Wisconsin’s “rich tradition of transparency and accountability,” for two years Gov. Tony Evers and his administration have been playing hide and seek with the media, the legislature and the general public.

State government agencies have failed to fill or have been extremely slow in filling a dozen open records requests submitted by Empower Wisconsin and the MacIver Institute over the last year-plus. In one case, it took 222 days for the state Department of Health Services to release critical public health documents.

But the problem goes beyond news outlets. Lawmakers tell us that they, too, have been waiting months for agencies to fill their records requests.

If such long delays and outright resistance to filling records requests are happening to news outlets and legislators who know their way around Wisconsin’s open records laws, what’s happening to the average citizen seeking information from state agencies?

As the governor prepares to unveil his state budget plan, the need for government transparency has never been higher.

It’s about time 

The statutes don’t specify a time limit on the release of public records, but they do require that government officials fill requests “as soon as practicable and without delay.” At the very least, they must notify the requester that they have denied the records request in whole or part, and they have to explain why.

In several instances over the last year-plus, the Evers Administration certainly has stretched the concept of “as soon as practicable and without delay.”

Following Wisconsin’s 2020 Spring General Election, the MacIver Institute sought specific communications from Andrea Palm, who at the time served as the secretary-designee of the state Department of Health Services. Palm recently resigned her post to join the Biden administration.

MacIver requested the health czar’s communications about the Evers administration’s Safer at Home emergency declaration that effectively locked down much of Wisconsin as the pandemic hit. MacIver also asked for Palm’s communications regarding the spring election, as well as the predictive COVID-19 models DHS was employing.

“MacIver provided key terms to the agency on May 9th to help expedite the process. It took 233 days from that date to finally fulfill the request,” said Bill Osmulski, Multi-media Content director for MacIver. A request sent in early May was not completed until mid-December.

Similarly, Osmulski said, the governor’s office spent nearly 6 1/2 months on MacIver’s open records request seeking all communications about the governor’s decision to change the date of the Spring Election.

It took the governor’s office 236 days to fill Empower Wisconsin’s request for correspondence between Evers and his staff regarding his 2019 sacking of former Gov. Scott Walker’s appointments to state boards and commissions. That open records request filed on Feb. 5, 2020 and finally completed on Sept. 28 of the same year, appeared to have missing and incomplete communications.

As of this week, Empower Wisconsin is waiting on five outstanding open records requests to the administration of 50 days or more. Two of the requests, nearly three months old, seek communications between the governor, his chief of staff and Evers’ former press secretary Melissa Baldauff. Baldauff quietly left her position last summer amid some bad press for the governor and his administration.

Another request, filed on Jan. 4, would seem relatively basic. Empower Wisconsin asked for communications related to the drafting and release of the administration’s December climate change report, led by Lt. Gov. Mandela Barnes. As of Thursday, the request remained open.

Making lawmakers wait 

State lawmakers, too, are frustrated about the transparency problems plaguing the administration.

State. Sen. Dale Kooyenga has been waiting for more than six months for cost estimates on the damage done during last summer’s riots in Madison.

“We’re still waiting on details that are critical to assisting us in our understanding of the state’s finances, pending possible legislation,” the Brookfield Republican said.

His staff has sought explanations for the delays on numerous occasions. Recently legislative aides went to the governor’s office to request an update in person. They found the office closed and dark, without reception staff or Capitol Police at the front desk.

Kooyenga said his legislative colleagues are experiencing similar problems. Records requests play a more pivotal role when dealing with an administration known for keeping important information from the Republican-controlled Legislature.

“It’s in multiple different directions,” he said. “When we try to get to the bottom of the unemployment problems we have to file an open records request. When we want to know how (the administration) is prioritizing who is getting COVID-19 vaccines, we need open records,”

Kooyenga said legislative offices still are waiting on records requests regarding whether Evers or his advisers have made more secret recordings of their conversations with Republican leadership, as they got caught doing in May. Empower Wisconsin is waiting, too. The administration has yet to fill a request, filed on Aug. 21, seeking. “Records of all communications that include recordings or audio files of any kind created after May 1, 2020 to present,” among other recordings.

Court intervention

Sometimes the only path to relief is through the courts.

In May 2020, the governor settled an open records lawsuit with then-state Rep. John Nygren. The Evers administration agreed to release more than 10,000 pages of documents to the Marinette Republican and pay $40,000 in attorney fees. Of course, taxpayers paid the bill.

Nygren had first filed his open records request in August 2019 — about eight months before Evers finally relented.

Evers’ attorney rejected the request, insisting it was overly broad. The governor’s office has made similar claims — and lost — to mainstream news outlets.

It took more than a year for Fox6 News to prevail in its request for emails between the governor and his chief of staff. In September 2019, a Fox6 reporter requested about four weeks of emails. Evers’ legal counsel claimed the request was overly broad. The reporter narrowed the request to one week of emails. It was denied again. Finally, the request sought just one day of emails between the governor and his top adviser.

After public pressure, the governor’s office relented and released the minimum. It refused to release the rest of the records originally requested, saying it was not legally required to do so.

In November, Dane County Circuit Court Judge Stephen Ehlke ruled the governor’s office’s interpretation of the state’s open records law was “incorrect.” Evers, again, was ordered to turn over all the documents sought and pay attorney fees.

Bill Lueders, president of the Wisconsin Freedom of Information Council, said the challenges posed by COVID-19 have in some cases made it harder for state and local public officials to fullfill records requests in a timely fashion.

“But the pandemic has also made the need for public transparency more urgent,” said Lueders, who also serves as editor of the Progressive. “We remind those in government that providing access to public records is one of their most fundamental and important duties, and urge them to strategically devote resources to tracking and improving their response to these requests.”

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