By Peter D. Fox
Wisconsin's public policy on openness in government is clear and concise, enacted by the Legislature itself. That is why the Wisconsin Newspaper Association (WNA) is taking the unusual step of asking a Dane County judge to permit it to become party to an open records lawsuit pitting the Wisconsin attorney general against two state legislators.
The key question for citizens is, "When does the public have the right to see a draft of proposed legislation?"
To gain an answer, WNA is asking to be allowed to intervene - on the public's behalf - in the open records case. The motion to intervene was filed Nov. 21 with Dane County Judge Michael Nowakowski, who is hearing the case that began in September.
"This case involves fundamental issues concerning open government in Wisconsin," the filing asserts. "Specifically, this case will decide if legislators, in their discretion, can disclose draft bills to select individuals outside the Legislature and Legislature Reference Bureau while refusing disclosure of those same records to the rest of the public."
The heart of the matter, though, is whether individual Wisconsin legislators are bound to the same open records laws that apply to the rest of government. Frankly, the identity of parties in this suit is of no interest to WNA. It is not important that the person filing this lawsuit happens to be the attorney general, a Democrat facing a primary election challenge in the 2006 election; it is not important that the named defendants are two Republican legislators, nor is it important that the bill in question affects "concealed carry" weapons. The important point is that a draft of the bill was reviewed in private by at least one advocacy group.
It is worth noting that the leaders of both the Democrat and Republican parties in the State Senate as well as Gov. Jim Doyle, a Democrat, defend the status quo. That does not make it right.
While the WNA represents Wisconsin's 260 daily and weekly newspapers, it also exists to champion the ideals of a democratic society, which includes a free press and an informed citizenry. Our organization resolutely believes public policy is best served when all citizens have the same access to the same information, and that includes legislative bill drafts.
Basically, draft material can be held in confidence until it is circulated outside the original working group composed of state employees. At that point, the materials becomes public. Current legislative practices permit draft legislation to be held in confidence within the direct legislative setting - even off-limits to the governor, cabinet secretaries and other officials not directly involved.
But when the decision is made to share a bill draft with one citizen or citizen group, then any 'privilege" should expire and all citizens should gain equal access. Special-interest groups should not have privileged access to public business.
When a legislator asks his staff or the staff of one of the legislative service departments to prepare draft legislation, that request and the draft produced generally should be confidential. WNA has no quarrel with that. But when the legislator shares the draft with a lobbyist or a selected few, it should be available to any member of the public who requests it. To suggest otherwise, as some legislators argue in this lawsuit, ignores state law and places the power to define "public" records in the hands of the individual legislators. It would give a political advantage to a few. More importantly, it would ignore the mandate established by the Legislature itself.
Perhaps the legislators seeking this unusual power can make a persuasive case that they should have the discretion to choose individuals to work with them privately on proposed legislation. If so, they should introduce legislation to amend the open records law. They wrote the law. They can change it, assuming the governor would sign it into law. They should not be permitted, however, to change the law without a full public hearing and discussion.
(Editor's note: Peter D. Fox is executive director of the Wisconsin Newspaper Association. The Tomahawk Leader is one of the 260 daily and weekly member newspapers of that association. Fox can be contacted at 800-261-4242 or Peter.Fox@wnanews.com.)