By Mike McCabe, Executive Director
March 16, 2014
Laws are only as good as their enforcement.
Wisconsin has some of the nation’s finest open government laws, including a model Open Meetings Law requiring the public’s business to be done in plain sight. And we have an excellent Open Records Law granting the public access to “written, drawn, printed, spoken, visual or electromagnetic information” about government operations that is “recorded or preserved.”
In recent years, enforcement of these laws has grown increasingly lax, and prosecutions of clear violations of the laws are less frequent.
When secrecy is condoned and a government official pays no price for failing to honor the public’s right to know, others notice. They see that you can disrespect the law and get away with it. This breeds among public officials a culture of contempt for Wisconsin’s traditions of open government.
Good laws not properly enforced become worthless laws. Wisconsin’s open government laws are headed fast in that direction if they have not already arrived.
The latest symptom of the illness appeared in the wake of a state appeals court’s order to make public close to 28,000 pages of emails that were uncovered by criminal investigators during a now-completed John Doe investigation. Six associates of the governor were charged and ultimately convicted of various crimes.
No one was charged with violating the state Open Records Law, however, in spite of the fact that the criminal probe revealed government employees’ widespread use of personal laptop computers, private gmail accounts and even a secret wireless router to hide information about their activities and frustrate Freedom of Information requests by the media and general public.
Much has been written and said about some of the more salacious content in these emails, including tasteless and even bigoted remarks by several of Scott Walker’s aides. Defenders of the governor insist it is much ado about nothing. His critics see grounds for his removal from office. Neither side seems to be giving much of any thought to the implications of this case for open government in Wisconsin generally and the Open Records Law specifically.
If the use of gmail and laptops and the like by government workers to circumvent the Open Records Law is not condemned and prosecuted, it is effectively deemed acceptable. This will not be lost on state legislators, or on members of city councils and local town, county and school boards. Those running state and local agencies will notice, too. The practice will become standard operating procedure.
Our Open Records Law is invaluable to democracy, and it is on very thin ice. A law is only as good as its enforcement, and the enforcement of this one leaves it – and the public it serves – in great peril.