Deliberation and open records

This is a slightly revised version of an earlier post. I tightened up some of the descriptions of the parties' legal positions after taking a closer look at the relevant documents.
This morning I participated in panel on the future of campaign finance reform at the annual meeting of the Eastern District of Wisconsin Bar Association. The panel was a dialogue/debate between me and Brendan Fischer, General Counsel of the Center for Media and Democracy. I may comment on some of what transpired later, but suffice it to say that we see things differently.

CMD was in the news yesterday because it sued the Governor over an open records request. The organization wanted certain documents related to draft legislation (since abandoned) that would have changed the mission statement for the University of Wisconsin. I have written and argued that the controversy on this supposed abandonment of the "Wisconsin Idea" is not very interesting or meaningful. The Wisconsin Idea is a Rohrschach Test of a thing that, to the extent anyone thinks about it, means different things to different people. There are senses of the idea to which the UW is no longer as faithful as it ought to be and other senses of the idea to which it should not be faithful at all. I don't think changing exhortatory language in the statutes would have changed anything - for better or worse.

But I want to focus here on the request for records.

The Governor's office has withheld certain records claiming, among other things, a "deliberative process" privilege that can be inferred from the open records law's requirement that a custodian of public records "balance" the public interest in disclosure against harm that may be caused by disclosure. The Governor's office has argued that disclosing internal deliberations about legislative proposals would have a chilling impact on the free exchange of ideas.

The idea isn't crazy - privileges to protect deliberative processes are not unknown in the law -  but it's wrong under our state law. Ironically, CMD's complaint cites a case that I and my colleagues at the Wisconsin Institute for Law & Liberty won on behalf of the John K. MacIver Institute for Public Policy. Just as ironically, I am inclined to agree with CMD here.

The state's open records law creates an extremely strong presumption that documents generated by government officials are subject to disclosure. The notion that they can be withheld because it might be awkward to expose the government's deliberative processes is not, as I say, a ridiculous idea, but it is one that our state legislature, in enacting the law, has rejected.

So sometimes cats and dogs do lay down together.

Cross posted at Purple Wisconsin