Sunshine "Weak" -- Wisconsin Leaders Failing State's Open Government Traditions

"If Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State," the Wisconsin Supreme Court observed in 2010. "All branches of Wisconsin government have, over many years, kept a strong commitment to transparent government."

But just in time for Sunshine Week 2013, GOP leaders in the state are showing how they are failing that proud tradition.

The secret email system in Scott Walker's County Executive office has remained secret. The system was used in the runup to Walker's 2010 gubernatorial election to coordinate messaging between campaign staff and county employees, and has been a key piece of evidence in the "John Doe" investigation that resulted in charges for six people. Although legitimate campaign-related emails are not covered by the state's open records law, anything related to public business should be accessible to the public -- and evidence indicates that a significant amount of the public's work was conducted over the secret system.

And according to new court filings from this week, Republican legislative offices defied a federal court order to preserve all records relating to the contentious redistricting process, and have apparently deleted files and tampered with hard drives. The redistricting process itself was marked by a nearly unprecedented level of secrecy and lawyers for Republicans filed a series of motions deemed to keep the redistricting process under wraps.

Perhaps ironically, this week is "sunshine week," a national effort to promote transparent and open government.

Hiding Secret Emails from Public View

In February, Governor Scott Walker walked away from the long running "John Doe" investigation into corruption in his office during his term as Milwaukee County Executive. Six people were charged and convicted, including three top Walker aides. Two of them, Darlene Wink and Kelly Rindfleisch, were charged with conducting partisan campaign work for Walker's 2010 gubernatorial campaign while being paid their taxpayer-funded salaries.

The investigation revealed a secret email system set up within the County Executive's office to conduct this illegal campaign activity. Campaign officials, in many cases, directed members of Walker's county staff and they met daily to coordinate messaging. Walker's campaign officials also previewed news releases from the county office, such as those responding to a 2010 accident when a concrete panel fell from the O'Donnell Park parking structure and killed a 15-year-old boy.

The handful of secret emails that have been released include documents of significant public interest. For example, Walker's then-chief of staff Keith Gilkes sent an email to Walker's county employees after the O'Donnell Park tragedy instructing them to "make sure there is not a piece of paper anywhere that details any problem at all" relating to the accident. Multiple news outlets filed open records requests after the accident, but this record was never released, raising questions about what else might be hidden from public view.

The full set of emails have not been made public because they remain protected by a secrecy order in the John Doe investigation. And Walker has said that records sent and received on the secret email system should stay secret. "It's time to move forward," he said.

But throughout the John Doe investigation, Walker insisted that he knew nothing about the wrongdoing in his office and was never a target of the prosecution (despite paying his private criminal defense attorneys $200,000 from a legal defense fund). If, as Walker claims, he had nothing to do with the illegal behavior, then he should have nothing to hide -- and the public should have access to those emails.

The Milwaukee Journal-Sentinel editorial board, which endorsed Walker in 2010 and again during his recall election, has also called on Walker to release the emails, writing: "The burden for making sure government is open and transparent should never rest on the public's shoulders. It should lie squarely on the shoulders of the public's servants, who should make sure that public business is done in the light of day; not in the dark via secret systems."

CMD has encountered its own issues with public officials trying to sidestep the open records law. In 2012, state legislators shifted their correspondence with ALEC to a personal email account, then refused to release the records in response to a lawful request. CMD filed suit to obtain the records (and was recently awarded the "Citizen Openness Award" for this effort to hold elected officials accountable).

Defending "Shameful" Redistricting Costs $1.9M, So Far

In the legislative branch, new court filings show the GOP contorting itself to hide the redistricting process from public view.

With Republicans in charge of the Assembly, Senate, and Governor's mansion after the 2010 election, they had the legislative majority to gerrymander congressional maps to their party's benefit. The maps were promptly challenged by immigrant rights group Voces de la Frontera, and the federal court hearing the case sharply criticized Republican lawmakers for conducting redistricting under a veil of secrecy and shutting the public out of the process, calling it "shameful," "sharply partisan," and "needlessly secret."

In drawing the maps, Republican legislators signed secrecy pledges and held a series of closed-door meetings at the offices of the law firm Michael Best & Friedrich, apparently in an attempt to protect the redistricting effort from public view and disguise it behind attorney-client privilege. In December 2011, the court demanded that Republicans turn over nearly all documents related to redistricting, but the GOP and their lawyers continued working to keep the material confidential -- leading the court to fine the attorneys $17,500 in fees for filing frivolous motions.

"Quite frankly," the court wrote in January 2012, "the Legislature and the actions of its counsel give every appearance of flailing wildly in a desperate attempt to hide from both the court and the public the true nature of exactly what transpired in the redistricting process."

As the federal court ruled on Wisconsin's maps in February 2012, the Center for Media and Democracy (publishers of PRWatch.org) revealed that the American Legislative Exchange Council had sent redistricting-related emails to Wisconsin legislators -- based on documents obtained through open records requests -- but those records were never released to the lawyers challenging the maps. This led to a new round of legal wrangling as it became apparent lawmakers continued keeping documents secret. Democrats briefly took control of the state Senate after the July 2012 recall elections and obtained the redistricting file, which revealed additional emails that should have been released, but were not.

In February 2013 -- a full year after ruling on the maps -- the court ordered Republicans to turn over the computers used in redistricting and subject them to expert forensic analysis. "[P]laintiffs have established that substantial numbers of documents were not disclosed, which satisfies the court that some form of 'fraud, misrepresentation, or misconduct' likely occurred," the order read.

Nine hard drives were turned over to the groups suing over the maps. Based on an initial exam by an experienced forensic investigator, one of the nine hard drives was unreadable and its exterior dented and scratched, which suggested its metal housing had been removed.

Other hard drives included wiping software that could be used to remove electronic data and hide deleted files (although it is not known whether the program was used). The forensic examiner found that files had been deleted in June, July, and November of 2012, but has not yet tried recovering those documents.

So far, taxpayers have been on the hook for $1.9 million in legal fees to defend the GOP's "shameful" redistricting effort.

As Wisconsin marks Sunshine Week 2013, it is clear that keeping the public in the shadows not only is bad for government accountability -- it is also bad for taxpayers.