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January 23, 2020

11/26/2019 7:30:00 AM
Nygren sues Evers for denying records request
JFC co-chairperson tried to gut open records law in 2015

Richard Moore
Investigative Reporter


State Rep. John Nygren (R-Marinette), the Assembly chairman of the Legislature's Joint Finance Committee (JFC), has sued Gov. Tony Evers in Dane County circuit court over what Nygren calls the governor's practice of concealing public records.

"Gov. Evers and his staff are blatantly hiding and denying access to public documents," Nygren said. "Whether it's the media, a concerned citizen, or an elected official, the public records law exists to provide access to what government is doing. Gov. Evers is not above the law. These brazen attempts to hide public documents is shameful and begs to question what Gov. Evers and his staff are hiding."

In July, Nygren said, the Department of Agriculture, Trade, and Consumer Protection (DATCP) requested the release of funds from the JFC for counseling vouchers for farmers. Nygren said he and the other co-chairperson of the JFC, Sen. Alberta Darling (R-River Hills), informed the DATCP that it needed to work with the Speaker's Task Force on Suicide Prevention and answer important questions raised by task force members about program operations and transparency.

Instead, Nygren says, DATCP, acting at the direction of the governor's office, attacked the JFC, claiming insufficient funds existed at DATCP for farmer mental health.

At the time, agriculture secretary Brad Pfaff accused the GOP of abandoning farmers: "There's no two ways about it: Republicans have chosen to leave farmers behind," Pfaff said.

The Republican-controlled Senate later refused to confirm Pfaff's nomination, effectively firing him.

In addition, Nygren said, the agency continued to withhold information from the task force chairwoman, Rep. Joan Ballweg (R-Markesan), though it provided similar information to media outlets. Nygren also says there was a discrepancy in available funds for counseling vouchers for farmers.

OpenBook, which tracks government expenditures, reported a higher available balance than what DATCP claimed publicly, the senator said.

The spat led to records requests from Nygren to the DATCP and to the governor's office related to farmer mental health and several other topics over a one-month period. The agency fulfilled the request, but the governor's office denied the request.

Nygren said his lawsuit seeks to have the court require that Evers and his staff turn over public records related to the original records request.

"It is sad that Gov. Evers and his staff refuse to be transparent and denied access to records about the very program they were seeking additional funding for," Nygren said. "These are taxpayer dollars but more importantly, these are funds that were meant to help our farmers in a time of need. Once again it's all about politics with the governor and his staff when it should be about the people we serve in this state."

The lawsuit comes at a time when public criticism of Evers's open-government policies are mounting. Just recently, the governor's office denied access to television station FOX6 in Milwaukee for a day's worth of the governor's emails (see related story).

The governor's denial to Nygren - that his request was overly broad - was an echo of the FOX6 request, which the governor's office deemed insufficiently specific because it lacked a subject matter.

Nygren's request was not reasonably limited, according to the governor's office, because it would apply to everyone in the office.



On second thought

While Nygren blasted the governor for denying citizens access to records, he was a major part of a GOP attempt in 2015 to gut the open records law altogether.

That year, the Republican-controlled Joint Finance Committee voted on the eve of the nation's Fourth of July holiday to effectively repeal the state's open-records laws.

The massive provisions, inserted late in the process and taking virtually everyone by surprise, would have exempted the Legislature completely from the open-records law, redefined public records so as to effectively remove the vast majority of state-agency records from inspection, and rolled back public access to the state's online circuit court records, known as CCAP.

Lawmakers voted 12-4 along party lines to pass the budget measure with the open-records provisions included. The GOP changed its mind and dropped the proposed changes after a massive public outcry.

The change that garnered the most headlines was the Legislature's bid to exempt itself entirely from the law. According to the budget motion, the measure would have also given legislators "a legal privilege or right" to refuse to disclose all communications and related records between the legislator or a member of the legislator's personal staff and "any other person."

Virtually all legislative records would have been sealed from public access. Not only communications and correspondence but bill drafts would have been off limits to the public.

Nygren and the Republicans also supported redefining what constitutes a public record in the first place - a change that would have foreclosed access to most state agency records.

The budget measure would have excluded all so-called "deliberative materials" from the definition of a public record. Deliberative materials were described as all communications and other materials, including "opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, and notes, created or prepared in the process of reaching a decision concerning a policy or course of action or in the process of drafting a document or formulating an official communication."

In the aftermath of the debacle, Nygren and other GOP leaders, including then Gov. Scott Walker, Senate majority leader Scott Fitzgerald, Assembly speaker Robin Vos, and Darling all said they meant no harm.

"After substantive discussion over the last day, we have agreed that the provisions relating to any changes in the state's open records law will be removed from the budget in its entirety," they said in a statement. "We are steadfastly committed to open and accountable government. The intended policy goal of these changes was to provide a reasonable solution to protect constituents' privacy and to encourage a deliberative process between elected officials and their staff in developing policy. It was never intended to inhibit transparent government in any way."

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.





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