The last six months have been a roller coaster for Wisconsin’s Open Records Law.
After the Legislature’s failed attack on the law over the Independence Day holiday, August brought a new threat.
A little-known state board expanded the definition of “transitory records,” which can be immediately destroyed. Once this action was revealed, there was an impressive outcry from the public and that change was dialed back last month. But there is still cause for concern.
The state Public Records Board sets retention schedules for state and local government records. Retention is important — if records aren’t retained, they can’t be requested and obtained by the public. State law makes retention the rule, and records can be disposed of only if the Public Records Board grants permission. The board’s mandate is to “safeguard the legal, financial and historical interests of the state in public records.”
But in 2010, the board made the questionable decision to allow immediate deletion of some correspondence. Such “transitory records” were deemed of such temporary value as to not require any retention. State agency employees could simply delete these records after they were created, without any further oversight.
On Aug. 24, the board held a meeting and expanded the transitory records category. Now it included not just correspondence, but other documents such as “interim files” and “recordings used for training purposes.”
The board’s meeting notice and minutes contained no indication of this change, later prompting the Wisconsin Freedom of Information Council to file an Open Meetings complaint with the district attorney. The day after the new definition was passed, the Walker administration notified the Wisconsin State Journal that records it previously requested had already been destroyed as “transitory.”
News outlets then reported the Public Record Board’s actions, and the reaction was swift. Critics said the change undermined the records law and the public’s right to know, inviting abuse. They pointed out that records the board defined as “transitory” were actually of significant public interest. There were also concerns that whole categories of electronic communications would be deleted as “transitory.” The Public Records Board was flooded with nearly 1,900 emails.
Fortunately, the board listened. At a meeting in January, it rescinded its August decision to expand the definition of “transitory records.”
But the danger has not passed. The old, 2010 definition of “transitory records” is still in place. Records custodians can still immediately delete some correspondence. Comments from board members in January suggested they are resistant to eliminating this category, despite state law suggesting that no records can be instantly deleted. Board president Matt Blessing said the issue would be revisited at a future meeting. The board next convenes on March 7.
Another positive step is a bill being circulated by Democratic lawmakers that would create penalties for destroying public records. As Assembly Minority Leader Peter Barca (D–Kenosha) observed, “There’s no recourse if agencies destroy records.” The bill would shore up existing provisions in the law that deter premature destruction of public records.
Let’s hope one or both of these potential fixes advance. Otherwise, Wisconsin’s weak records retention requirements will continue to undermine the public’s right to know.
Christa Westerberg is an attorney at Bender Westerberg LLC in Madison.