Gov. Tony Evers took down a public records tracking website 4 years ago and never put it back up
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MADISON – A tool created in the wake of a government transparency scandal that tracked state agencies' handling of requests for public records was quietly eliminated four years ago by Gov. Tony Evers and has yet to be replaced.
Evers’ office in 2019 said the web portal, created by Republican former Gov. Scott Walker in 2016 to track each state agency's responses to public records requests, was inconsistent and inefficient. His then-spokeswoman Melissa Baldauff said at the time Evers was evaluating better ways to accomplish the same goals.
More than four years later, Evers hasn't taken action to create a new tool in place of a site that was created to reassure the public after Walker and Republican lawmakers caught intense backlash for a failed effort to gut the state's public records law.
“If he had replaced that with something better, that would have been great. But he just took them down from the state agencies,” said Tom Kamenick, president and founder of the Wisconsin Transparency Project, an open records watchdog group. “They disappeared.”
Aides to Evers have told journalists and open government advocates he doesn't have to follow executive orders from past administrations, including two Walker orders from 2016 that clarified records response expectations for state agencies and introduced the now-defunct website.
Britt Cudaback, spokeswoman for Evers, said his administration has taken other steps to ensure government accountability. Evers' office mandates annual public records training to ensure compliance with state law and provides information about response times to "any person at any time" rather than spend staff time and resources maintaining a website, she said.
"Our administration decided early on we weren’t going to take cues on accountability and transparency from Scott Walker, who regularly defied and tried to decimate Wisconsin’s open records laws," Cudaback said in an email.
The Milwaukee Journal Sentinel submitted a request for this information on June 30 and received a response nearly a month later on July 28 following multiple email exchanges and phone calls with Evers aides.
Data from the governor's office showed Evers' administration during his first term took more time to complete open records requests than Walker's administration did during his second term. Evers' office on average completed requests in 38 days compared to 33 days under Walker's office, though Evers' office handled approximately 40% more requests and did not include some routine requests from journalists in tabulations.
Bill Lueders, president of the Wisconsin Freedom of Information Council, urged Evers to revive the website. He hoped a new transparency initiative would improve response times, which he said are "worse now than ever."
“It’s not acceptable to take as long as some of these state agencies are taking," Lueders said. “It completely destroys the newsworthiness of the records.”
State agencies rarely publicize response times
The Journal Sentinel contacted 16 state agencies under Evers' direct authority on June 30 seeking information about how they track response times to public records requests. The eight agencies that responded as of July 28 mostly maintained in-house records of response times, though methods and timeframes for records tracking across agencies were inconsistent and none were public-facing.
Data provided by the Office of the Commissioner of Insurance, the Department of Financial Institutions, the Department of Military Affairs, the Department of Children and Families, the Department of Safety and Professional Services and the Department of Veterans Affairs indicated all five agencies on average returned requests in approximately a week or less in 2022.
Neither the Department of Health Services nor the Department of Corrections provided response times upon request, though a DOC representative said the department would attempt to create a report. DHS said it had response time data going back to 2017 but had "no idea" why the data wasn't still published on a public-facing website.
The Journal Sentinel also contacted Wisconsin's six state offices led by elected officials. All but Democratic Lt. Gov. Sara Rodriguez's office responded.
The Department of Public Instruction, the Secretary of State's Office and State Treasurer John Leiber all confirmed to the Journal Sentinel they did not track records response times. Hannah Menchhoff, communications director for the secretary of state's office, said the practice was consistent with procedures in other executive agencies.
The Department of Justice is the only state agency still publishing response times in a public-facing manner.
Response times at the DOJ have slowed for years, according to the DOJ Office of Open Government's 2022 annual report. The department responded to a record-high number of annual requests in a median time of 18 days, a 500% increase since the department began tracking the statistic in 2017. The department often receives complex requests that require extensive review, DOJ spokesperson Gillian Drummond told the Wisconsin Examiner in March.
Lueders said wait times at the DOJ — which in dozens of cases stretched over a year — are “not acceptable.”
“If it takes months to get something, it's it's often too late to do any good,” he said.
Records law mired in legal uncertainties
Wisconsin’s public records law was created in 1981 to provide public insight into government action.
But the law sets vague guidelines for fulfilling requests — just “as soon as practicable and without delay." For example, lawmakers can instantly destroy email records, which prevents the public from obtaining them.
Evers has attempted to ban this practice as part of more than a dozen efforts to further bolster accountability and transparency across state government, according to Cudaback, who said "most if not all" were shot down by Republican lawmakers.
More: Wisconsin lawmakers can legally delete their records
Walker issued two executive orders in 2016 that aimed to define clearer guidelines for fulfilling requests after widespread public backlash forced GOP leaders, including Walker, to abandon their attempt to keep private almost all records related to lawmakers' work.
It was a sudden shift for Walker, who during his campaign for governor in 2010 used a secret email system to shield political discussions with top aides from public records requests. Regardless, his new policies won praise from government transparency advocates including Lueders’ FOIC, which awarded Walker for his work in 2018.
Walker's orders directed all state agencies to fulfill simple requests within 10 days, confirm records requests were received by the next business day and respond within five days to questions about outstanding open records requests.
The orders also created the public records tracking website Evers nixed three years later.
Mel Barnes, chief legal counsel for Evers, told good government advocates during a meeting in March that the Evers administration is not required to follow the public records transparency guidelines outlined in 2016 because they are not bound to orders enacted under Walker, Lueders said.
Baldauff, the former Evers spokeswoman, made a similar claim in 2019 when asked why Evers took down the public records website. She said Evers’ office strictly followed Wisconsin’s public records laws and guidance provided by the Wisconsin Department of Justice’s Public Records Law Compliance Guide, not executive orders from prior administrations.
State law doesn't specify whether executive orders from past governors apply to their predecessors. And without an explicit order from Evers rolling back Walker’s records guidelines, legal experts who spoke to the Journal Sentinel were unable to definitively say whether Walker’s orders still apply and largely saw the question as an area of unsettled law.
“An executive order isn’t a rule. It really is just a direction from the chief executive officer to do something,” said Rick Esenberg, founder of the conservative public interest law firm Wisconsin Institute for Law & Liberty. “It’s hard to see somebody would bring an action against an administrative agency and then successfully be able to sue them.”
More: Walker office already acts as if records exemption is law
Actions suggest Walker, Evers acknowledged previous orders
There is evidence suggesting both Walker and Evers as well as other recent governors considered at least some executive orders from their predecessors to still be in effect during their term.
Evers has issued at least three executive orders superseding past orders from Walker, treating Walker's orders as if they were still in effect.
He also appears to follow a Walker-era executive order that in 2017 created an Office of the Inspector General in the state Department of Transportation. The office still exists today despite Evers never issuing an executive order pertaining to it.
Walker himself issued at least seven similar executive orders during his two terms that suggest he still considered Democratic former Gov. Jim Doyle's orders to be in effect. For example, Walker issued a 2011 order suspending a Doyle mandate from 2005 that apprentices be employed on state construction projects.
Both Doyle and his predecessor, Republican former Gov. Scott McCallum, issued their own executive orders directly acknowledging that a former governor's order was still in effect years after their term.
There are exceptions. Records of past executive orders show both current and former governors routinely renewed various nonstatutory committees created by their predecessors at the beginning of their term in office. In some cases, governors issued orders renewing committees from their first term at the beginning of their second term.
Regardless of the legal interpretation behind executive orders, Esenberg said there’s a “long history” of political leaders on both sides of the aisle rolling back government transparency in a way that avoids public backlash.
“If in fact that is what (Evers is) doing — and I don’t know if that’s what he’s doing because nobody’s brought this thing to my attention — he doesn’t want to take the political heat for it, just as people in both parties haven’t wanted to take the heat for restricting transparency in the past,” Esenberg said.
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This article originally appeared on Milwaukee Journal Sentinel: Gov. Evers took down public records site that has yet to be replaced
