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Will the publication of the deleted documents facilitate the discovery of the secrets of the legislature?

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By turning over up to 20,000 deleted documents to a watchdog group last week, Assembly Speaker Robin Vos may have inadvertently shown a way around a loophole in state law that allows the Legislative Assembly to legally hide the material that legislators want to keep from the public.

At the very least, the speaker’s decision changes the way some experienced users of the state’s Open Records Act formulate their requests for records from the state legislature to include deleted material.

“I’ve already changed my request template,” says Amanda St. Hilaire, investigative reporter for Fox6-WITI TV in Milwaukee, who files at least 100 open case requests each year.

On Wednesday, April 6, the progressive watchdog group American Oversight received some 20,000 pages of documents from Vos in response to the organization’s request for documents related to partisan scrutiny of Wisconsin’s 2020 presidential election. Vos launched the review last year and then hired former Wisconsin Supreme Court Justice Michael Gablemen to conduct it.

In a statement to reporters on Friday, a US oversight spokesperson gave the first description of the materials. “The records, which had been deleted by Vos’s office prior to their retrieval and release, include communications with prominent supporters of the stolen election lie, as well as records related to contract extensions for Michael Gableman,” the official said. communications Jack Patterson. “Due to the large size of the production, American Oversight is still processing and reviewing the recordings.”

As it has done with other documents it has received regarding the GOP’s scrutiny of the election, American Oversight is releasing the documents on a dedicated web page. The organization has also created a summary page where he publishes his analysis.

This summary on Sunday highlighted communications involving Vos and supporters of the lie that Trump won Wisconsin’s presidential election, despite losing the state by 20,000 votes in a result that was confirmed by multiple counts. canvassing and follow-up surveys.. The summary also says some documents offer new details about Gableman’s hiring.

American Oversight made several open case requests regarding the Vos and Gableman 2020 election reviews. One, directed to Vos and the Assembly, was seeking records related to the Gableman review. On March 30, Dane County Circuit Judge Valerie Bailey-Rihn found Vos in contempt of court for failing to comply with his order in November 2021 to produce these documents.

The records American Oversight received from Vos last week are from a separate request and include material generated before Gableman was hired. Bailey-Rihn is also hearing litigation over that claim and in March ordered Vos and his team to include deleted items in their response.

Most government agencies are required to retain documents generated in the course of their work. The State Archives Preservation Act, however, exempts the state legislature, allowing legislators and their staff to delete many documents that pass through their hands. At least some legislators regularly delete most emails, for example. (Democrats in the Legislature have already introduced bills to end this exemption, most recently in 2021; legislation has not advanced.)

Andy Hall, executive director of the Wisconsin Center for Investigative Journalism, said he and the rest of the center’s Wisconsin Watch staff did not consider the deleted recordings might be recoverable.

“Wisconsin Watch and, I assume, other news outlets as well as others who seek information from the Legislative Assembly will specifically consider searching for deleted recordings in future requests for open recordings from the Legislative Assembly” , he said. “For too long lawmakers and legislative staff have tried to hide their actions from the public. ”

St. Hilaire, the Fox6 reporter, said the inclusion of deleted material in the latest version of the recordings immediately caught her attention.

Amanda Saint-Hilaire

“I never thought about asking for specifically deleted recordings,” she says, “because based on the way the law works, I always felt like if they could get those recordings back, that would answer my request.”

In 2018, after joining the Milwaukee station, St. Hilaire requested email messages for one week in 2017 and another in 2018 as well as the 2018 calendars of 54 Wisconsin lawmakers.

Some replied that they had not received any emails for the designated period; with others, “it was clear that we were missing communication about things that they absolutely would have talked about during this time,” St. Hilaire says. Who drove the station report on the legislature’s exemption from the Records Retention Actand the fact that a number of lawmakers routinely suppress recordings.

The revelation last week that Vos’s office had produced suppressed recordings not only changed her plans for making requests in the future, she said. This underscores a much broader concern about how some officials are handling the concept of open government.

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St. Hilaire says she has found that most government record custodians work in good faith to fulfill their responsibility to make records accessible.

“But when you look at situations like this, it makes you wonder when you’re filing claims, is this a game for some people?” she says. “You have to give the exact magic words to get what you want. This is not how the system is supposed to work.

The Open Files Act is not just for journalists but for the public, she observes. For a voter unfamiliar with the specifics of the law — including the ability to recover deleted documents — “they won’t know how to do that,” St. Hilaire says. “It blocks transparency – it’s not good for democracy.”

Bill Luders
Bill Luders

For Bill Lueders, president of the Wisconsin Freedom of Information Council, the sheer volume of filings Vos’ attorneys turned over last week prompts a skeptical assessment of their underlying motives.

“I suspect President Vos is trying to bury a needle in a haystack,” Lueders said. “I suspect he deliberately overinterpreted the request to apply to any email he could find.”

At the April 6 hearing, Bailey-Rihn accepted an expert’s finding that other deleted documents — text messages and emails from Vos’ personal cellphone account — could not be recovered or products.

In an interview, Jacob Hoffman-Andrews, a senior technologist at the Electronic Frontier Foundation, said that especially in the case of messages sent through Google’s Gmail service, this is most likely true if the messages were deleted a while ago. is more than 30 days old. According to Gmail’s retention policies, which automatically erase this information when it’s deleted, “leftovers can be recovered within a few days or weeks,” but no more.

Nevertheless, Lueders worries that there is no further investigation into “evidence of lawmakers deliberately destroying records to prevent the public from seeing them – which is a total breach of public trust.”

Vos “likes to give the middle finger” to open government advocates, Lueders says. Flooding US surveillance with documents last week illustrates this attitude, he adds, as does the speaker’s disregard for the order that led to the March 30 contempt ruling against him.

“I think the contempt charge was issued because the speaker demonstrated a genuine disregard for his responsibility under the law,” Lueders says, “and I find that shocking.”

In the most common scenario involving a public official who objects to the release of documents, the official will obey a subsequent court order to do so. Lueders calls Vos’s failure to comply with the November order and the resulting contempt decision on March 30 “extraordinary, if not unprecedented.”