View from around the state: State court got it wrong; public has right to videos

Listen to this article

— From the Milwaukee Journal Sentinel

Overturning two lower court rulings, the Wisconsin Supreme Court struck a blow for government secrecy. The court’s 5-2 decision in the case involving state Attorney General Brad Schimel was mistaken — twice — and came from the same swamp that produced state GOP legislators’ efforts in 2015 to draw curtains on government transparency.

First, it was mistaken because the public should have access to the training videos Schimel was keeping under wraps. Schimel made the videos for the Department of Justice when he was Waukesha County district attorney. The Democratic Party filed suit to see whether Schimel had made any questionable comments. He hadn’t, according to the lower court judges. But those judges also ruled that the public nevertheless should have access to the videos because there was nothing in them that wasn’t otherwise known and the public had a right to see what the government did to protect children from predators.

The second mistake came when Justice Rebecca Bradley, writing for the majority, ascribed a “partisan purpose” to the Democratic Party in seeking release of the videos. Of course the Dems had a partisan purpose. So what? The motive of those seeking to open government records is never the question; the only question is whether the records legitimately belong to the public. Would those justices deny records to the Republican Party if it sought records from Democrats or a Democratic administration?

Who asks for a record and the motive for asking for that record are not legitimate questions under the state’s open records law. Nor should they be. The courts must consider all such requests objectively and equally; it must not deny them to certain groups because they may be partisan or for any other motive. Doing so makes a mockery of the state’s laws.

The court also bought Schimel’s argument that the videos should be kept hidden to protect law enforcement techniques and prevent victims from being re-traumatized by the release of information about what they went through. We understand Schimel’s point, and we don’t think he’s trying to hide something nefarious.

But two lower courts had decided that the videos did not reveal any particularly sensitive law enforcement techniques. And prior court decisions have recognized that the public has a right to records that reveal how law enforcement is performing.

In her dissent, Justice Shirley Abrahamson contended the majority went too far in keeping the two Department of Justice videos from the public.

“Today, the majority opinion significantly dims the lights on transparency in government and shuts off some lights by concluding that the Department of Justice may withhold both of the videos in their entirety,” she wrote.

Abrahamson got it right. The majority got it wrong, and sent a disturbing message about this court’s commitment to protecting the public’s right to know how its officials conduct their business.