People who pay attention to such things know that Wisconsin Attorney General Peg Lautenschlager is considered to have a pretty good record on open government issues. But in her role as head of the state Justice Department, Lautenschlager is also charged with defending state agencies against lawsuits and, in three current lawsuits, the Justice Department is representing agencies accused of violating the state's Open Records Law. This tension is the subject of an opinion column that appears in the April 21 issue of Isthmus, which is included here. Also posted are documents from the three lawsuits.

1. The Isthmus column, by Bill Lueders
2. Records regarding a lawsuit against the state Elections Board
3. The brief filed by the plaintiffs in the DNR warden case
4. The complaints from the lawsuites regarding employee names

1. The Isthmus column, by Bill Lueders, Opinion/Bill Lueders

Peg Lautenschlager, defender of secrecy
AG's dual role puts her on the wrong side of open government cases

Gregg Walker is ticked off, and for good reason.

"It's absolutely ludicrous that this attorney general thinks she's for open government and open records," fumes Walker, the general manager of The Lakeland Times newspaper in Minocqua, referring to Peg Lautenschlager. "In a critical test of the public's right to know, [she] failed us and fought for secrecy in government conduct."

The Lakeland Times is engaged in a protracted lawsuit against the state Department of Natural Resources, over records of a disciplinary investigation regarding a DNR game warden. It's a huge strain on Walker's tiny independent paper, which comes out twice weekly, employs 18 people, and has a circulation of just over 10,000. Walker reckons he's spent $40,000 so far, which could more than double before the matter is resolved.

For advocates of openness in government, this is an important lawsuit, because of the precedent it could set.

The DNR, backed by the AG's office, is refusing to release records of its probe into charges that game warden Thomas Kroeplin ran an illegal license-plate trace to learn who was dating his nephew's ex-girlfriend. Kroeplin was disciplined for violating "work rules" and the DNR recently agreed to pay $90,000 to settle a federal invasion-of-privacy lawsuit brought by the person whose plates were traced.

What makes the case critical - and frightening - is the state's novel contention that the records sought are exempt from disclosure because they might someday be used for "staff management planning." This interpretation, argues the Laketime Times in its legal brief, "defies decades of precedent under the Open Records Law and, if accepted, would allow custodians to deny public access to virtually all disciplinary records."

Last July, Dane County Judge Richard Niess rejected the state's position, saying it wasn't even a close call: "There is a broad strong presumption in favor of the public disclosure of the records of the business of government," especially when "the sworn officers of the government are alleged to be involved in criminal behavior."

But the DNR appealed this ruling, and so The Lakeland Times has had to continue the fight. A state appellate court heard oral arguments this week; a decision is expected soon.

The DNR case is actually one of two in which Walker's paper finds itself opposite Lautenschlager's office in an important open records fight. The Lakeland Times and Milwaukee Journal Sentinel are suing two state agencies for refusing to release the names of rank-and-file employees, pursuant to new labor pacts. Now even the identity of the people whose salaries we pay is secret!

And Lautenschlager's office is backing the state Elections Board's denial of access to its statewide voter file, on grounds that "it is not complete and has not been fully checked for accuracy." The requester, Barry Ashenfelter of Wisconsin Voter Lists, has filed suit over this denial. Says Ashenfelter of the AG's role, "I'm surprised by their support for secrecy."

So should we all be. Peg Lautenschlager is, in the main, a champion of open government. Her office - in its statutory role as interpreter of the state's Open Records and Open Meetings Laws - has issued good, strong opinions in favor of the public's right to know.

Lautenschlager has also courageously sued public officials who have arguably violated these laws, including the UW Board of Regents (which held what was deemed an illegal meeting to hike administrators' pay); a Beaver Dam agency that secretly negotiated a deal with Wal-Mart to build a massive, city-subsidized, $55 million distribution center; and lawmakers who have shared bill drafts with special-interest groups but not with other requesters.

Indeed, in that last case, now pending in Dane County Circuit Court, Lautenschlager is arguing that a bill shown to outsiders loses its draft status, a sensible standard. Yet her office at first advised and is now backing the state Elections Board in claiming the statewide voter list is a "draft" because it is a work in progress.

That's nonsense, argues Wisconsin Voter Lists in its complaint. Under the law, a draft is a record "prepared for the originator's personal use"; the mere fact that a record is not complete, or that it may contain inaccuracies, does not make it a draft.

Indeed, the Elections Board's admission in its denial letter that various parties have "identified several problems with this data, which makes it incomplete," constitutes a pretty good argument in favor of disclosure. As anyone watching this issue knows, the Elections Board farmed out the job of creating this list to Accenture, a Bermuda-based company that has screwed up royally in other states and put Wisconsin at risk of losing federal funds by failing to meet deadlines here.

"The public is entitled to see for itself how far along the process is and what, exactly, the Elections Board and its contractor have been spending money to create," argues Wisconsin Voter Lists in a brief filed last week. It says access to the list is required to provide "much-needed oversight" of this problem-plagued process. (For filings from referenced lawsuits, see Document Feed at thedailypage.com.)

Similarly, in the game warden case, the requested records are needed to know how well or how poorly DNR officials fulfilled their duties with regard to a serious misconduct allegation. If the state's position prevails, the ability of public officials to cover up employee misconduct, or their own, will be greatly enhanced.

Each of these cases (DNR warden, employee names, Elections Board) prompt a common question: Why is Peg Lautenschlager, defender of openness in government, representing the interests of secrecy?

Bob Dreps, a Madison attorney who represents the requesters in all three cases, observes diplomatically that Lautenschlager's role as AG puts her in "a difficult position." Her office is duty-bound to represent state agencies that are being sued. "If an agency has an arguable position, I think she has to argue it."

Mike Bauer, a top administrator in Lautenschlager's office to whom a request for comment was referred, says pretty much the same thing. The office must defend an agency whenever a "good faith argument" can be made in support of its position - which is not necessarily what the attorney general would affirm as the best position.

But the AG's office can decline to represent an agency, notes Bauer, adding that it is more likely to do so in open government cases than other kinds of litigation. Walker of The Lakeland Times says that's exactly right: "She doesn't have to defend the DNR." (Lautenschlager challenger Kathleen Falk, though campaign manager Melissa Mulliken, declined to take a position on the game warden lawsuit, calling it a "complicated legal matter" on which Falk did not have "all the facts.")

It's true, as Dreps says, that Lautenschlager is in a difficult position on these cases. No matter what she does will tick someone off. But that's what the job of attorney general is all about. And wouldn't it be better if the people getting ticked off were public officials trying to keep secrets, not those who seek to protect the public's right to know?

Bill Lueders (blueders@isthmus.com ) is news editor of Isthmus and president of the Wisconsin Freedom of Information Council.

2. Records regarding a lawsuit against the state Elections Board

Letters and complaint [pdf, 386k]

Brief [pdf, 41k]

3. The brief filed by the plaintiffs in the DNR warden case

The brief [pdf, 190k]

4. The complaints against the state Department of Administration and DNR regarding employee names

Complaint against DNR [pdf, 474k]