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The Northwoods River News | Rhinelander, Wisconsin

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home : opinions : opinions
December 12, 2019

11/23/2019 7:30:00 AM
Our View
Open government is in big trouble, with a capital T
Gregg Walker and Richard Moore
Publisher and Columnist

We begin this week by quoting the words of the immortal Harold Hill in "The Music Man":

"Friend, either you're closing your eyes To a situation you do not wish to acknowledge, Or you are not aware of the caliber of disaster indicated .... Well, ya got trouble, my friend, right here, I say, trouble right here in River City."

Well, to echo the fictional professor Hill, we've got big trouble in Wisconsin, and it's worse and later than most people think.

Professor Hill was worried about the presence of a pool table in the town, which he exhorted to the good citizens of River City would cause their children to fritter their youth away. Unfortunately, in Wisconsin, we've got even bigger trouble.

I say, that's trouble, big, big trouble, trouble with a capital T, and that rhymes with C, and that stands for the Closed Government policies of the ruling elites of both political parties.

The latest travesty of transparency, otherwise known as the administration of Gov. Tony Evers, indicates just how big the trouble is. As we report today, the governor doesn't want anybody to see even a day's worth of his emails.

Then, too, he's being sued by a GOP lawmaker for denying access to records about farmers' mental health. He's also being sued for keeping reporters with a conservative news outlet from attending press briefings.

Oh, yeah, he's also being criticized for shutting down the state's open government website and for ignoring executive orders that defined best practices for open government.

If all that seems bad, it is. And it spells big trouble for a couple of reasons.

First, the dismissive attitude toward transparency has taken root not just in the governor's office, it exists from top to bottom, at every level of state government, and in local governments, too. It is a defiant attitude that reeks of elitism.

Government has over the past century or so become a profession, and life-time professional politicians and bureaucrats really don't think you have a right or need to know what they're doing. They know better about what's good for us, and that's that.

When that attitude takes hold in the highest offices in the state, is there any reason to believe it won't infect every office and local government? The contempt for open government by this administration, as well as the previous administrations of Scott Walker and Jim Doyle, is a big reason why we have so many rogue local governments thumbing their noses at open meetings and open records laws and doing whatever they want, voters be damned.

And because they so often get away with these transgressions, it only encourages more and more secrecy. When district attorneys refuse to exact any real consequences for violating the open meetings and open records laws, they encourage ever more violations.

If local officials spend almost a million dollars more on a project than voters approved, as was done in Boulder Junction, just to cite one example, and if they get away with no real consequences while taxpayers suffer, why won't other officials act the same way?

Unfortunately, this sad attitude is even taking hold among many community leaders who really should know better. Yes, they ask, open government is important, but why are we spending so much time on those violations when we have so many other pressing issues - public safety, hunger, mental health, jobs and wages, drug addiction - to attend to.

Yes, these people should know better. They should know better because it will be impossible for the citizenry to attend to any of those other issues if there is no open government. Deliberations about issues will be held behind closed doors, by the professional politicians and bureaucrats, who know better than we do how to spend our tax dollars.

Open government is the first and foremost issue. It is the foundation upon which the house of democracy is built. It is what will allow the citizenry to tend and decide policies relating to public safety, hunger, mental health, jobs and wages, and drug addiction.

Having a local government exceed voter authorization by almost a million dollars is bad enough, but at least it was exposed. Without open government, that money - which the public could have spent on other important matters - would not just be spent without voter approval, the spending of it would never be disclosed or exposed.

We don't mean to pick on Boulder Junction. This is an issue everywhere, as those who read our newspaper know, and these days the wagons are circling to take down open government once and for all in Wisconsin.

The latest ploy is to deny open records requests because they are too burdensome. As stories in today's edition show, Mr. Evers' office denied television station FOX6's records request, by reporter Amanda St. Hilaire, for a day of the governor's emails because they lacked both a subject matter and a reasonable timeframe.

In doing so, they were literally trying to rewrite the law to say that both elements are needed, when the law plainly says a reasonable request must contain a specific subject matter or a reasonable time frame. It must have one or the other element, not both.

Nice try, but we believe the courts will not allow the governor to simply rewrite the law.

That said, running through the denial of the TV station's request, as well as in the governor's denial of a lawmaker's request for records, was the excuse that the requests were too burdensome - too many records to be individually reviewed for possible redactions.

This is a dangerous trend because there are cases in which the courts have ruled that requests were indeed too burdensome because of the number of records involved. So those pursuing this strategy have a chance to really close down open government in significant ways.

And, by the way, this strategy is not new with Mr. Evers. Scott Walker used it, too, and used it against this newspaper.

Indeed, in 2015, in a request similar in nature to that made by FOX6 and the GOP lawmaker, The Times had asked for all correspondence and legislation-related records during the closing days of work on the state budget, from June 24, 2015, to July 6, 2015, a time period during which a motion was inserted into the budget to eviscerate the state's open records laws.

The request was denied, and it sounded much like the denial sent to FOX6 and the GOP lawmaker: "Unfortunately, we are unable to fulfill this request because it is not reasonably specific as to subject matter," deputy legal counsel Katie Ignatowski wrote. "This request contains no limitation on what type of records you are requesting. The governor's office has over thirty full-time employees, each of whom generate and receive a variety of records spanning a wide range of topics every day."

Their point is simple: Your requests for information are simply too unwieldy and burdensome for us to bother with. Go away now and let us run your lives and spend your money. There's nothing here to see.

It's the main strategy closed government proponents are using these days to torpedo transparency, and it's being used by both Republicans and Democrats. It must be countered aggressively.

That said, some might ask, don't they have a point? Aren't some records requests just too large to be reasonable?

Perhaps in a rare case, but not in the vast majority of cases, including all those mentioned in this editorial. In the vast majority of cases, the argument that a request is too burdensome is a red herring.

That's because technology is so advanced that records custodians can retrieve records in almost an instant - 500,000 records in a hour, according to one company. As for the most time-consuming task in records requests, individualized review to redact exempt information, software exists for that task, too, and it's improving to the point that mistakes in the redaction process are no more numerous than those made by humans in manual reviews, and fewer in many cases.

The trick is, sensitive data like social security numbers, credit card numbers, and personal information have patterns. The software allows users to search for all data that matches the selected pattern.

Auto-redaction also allows custodians to automatically redact words or phrases across a group of documents without actually being required to view every document.

Very soon - if not already - the notion that a records request is too broad or burdensome should be a thing of the past, and no longer a crutch for those who hate transparency.

Instead of resisting requests, the governor and the state and local governments, too, need to be researching how best to invest in this technology.

Yes, it will require an investment, but it will save thousands and thousands of hours of redaction time and costs, and, most important, it will give the citizens of this state complete access to the information that is, after all, ours to begin with.

There's no better investment than an investment in open government.

Of course, this is exactly what the professional politicians and bureaucrats do not want, and so we must continue to be aggressive in demanding it, aggressive in demanding adherence to open government laws, aggressive in demanding consequences for those who violate them, and aggressive in calling out those who downplay the importance of open government laws.

We pledge to continue to do just that.

If we all do so, there will be a lot less trouble with a capital T in Wisconsin, and a lot less of that rhyming C, which stands for Closed Government.

We close with the truly immortal words of a real rather than fictional man, a judge with a lifetime of commitment to transparency: Vilas County circuit judge Neal A. "Chip" Nielsen.

In an open records case against Lakeland Union High School in 2018, in a request similar in nature to that made to the governor by FOX6, this newspaper asked for all current faculty and staff disciplinary records for the previous five years.

As the governor's office argued, LUHS likewise contended that our request was not specific enough, and, what's more, claimed that asking for the disciplinary records of all 78 LUHS staff members amounted to nothing more than a "fishing expedition" that would encourage ever more blanket requests and turn the purpose of the open records law "on its face."

Nielsen pondered the argument and rejected it, ordering the records to be released and giving us one of the greatest open-government quotes of all time:

"The school district says The Lakeland Times is on a fishing expedition," Nielsen said. "It might be, but (in Wisconsin) there's no closed season, no bag limits, and no license required for that kind of fishing."

Amen to that. Let's make sure the fishing stays good in Wisconsin.







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