Denial of access to sexual harassment complaints reminder of secretive lawmaking in Wisconsin

Legislative leaders’ decision to deny access to sexual harassment complaints against their fellow lawmakers and Capitol staffers is another example of how Wisconsin’s top policymakers sometimes operate in secret, unbound by open meeting and records laws every other governmental body in the state must follow.

Here are some key things to know about the refusal to release the complaints and how the Legislature plays by its own rules:

WHO ASKED FOR THE COMPLAINTS?

The Associated Press and other news outlets asked the Senate and Assembly’s chief clerks for complaints alleging sexual harassment their offices have compiled over the last decade.

WHY WERE THEY DENIED?

Senate Chief Clerk Jeff Renk and Assembly Chief Clerk Pat Fuller both said releasing complaints would have a chilling effect on people reporting incidents, and that outweighs the public’s right to view the documents.

The clerks work for Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, both Republicans.

Vos and Assembly Minority Leader Gordon Hintz told reporters that complaints have been filed in the Assembly. But they both said they support the decision not to release the documents to protect privacy of both victims and accused.

Fitzgerald said he’s working with Senate Minority Leader Jennifer Shilling to update that chamber’s sexual harassment policies. Until the changes are finalized the “most appropriate course of action is to keep employees’ conversations with human resources confidential,” he said.

Shilling said the decision to share sexual assault and harassment experiences should be left to the victim.

DOES THE STATE’S OPEN RECORDS LAW APPLY TO THE LEGISLATURE?

Generally, yes. The law generally requires public access to government records with some exceptions, such as records in an ongoing criminal investigation. Unlike other government officials, legislators can destroy their records whenever they choose unless someone has requested them.

In the case of a request, legislators, like all other record custodians, must decide whether disclosure would serve the public interest. If they decide the harm in disclosure outweighs the public’s right to access, they don’t have to release them. That’s what Renk and Fuller concluded in the sexual harassment complaint request.

However, Wisconsin Freedom of Information Council President Bill Lueders said other state agencies at least release discipline records with some material blacked out.

He also noted that a state appeals court in 2014 ordered Sen. Jon Erpenbach to release the names and email addresses of people who sent him messages during the debate over Gov. Scott Walker’s law stripping most public workers of their union rights.

Erpenbach had argued he was protecting the senders from reprisals.

“It’s an abuse of power for the leadership of the state Legislature to say you can’t see who’s complaining about sexual harassers in our midst,” Lueders said.

WHAT ABOUT THE OPEN MEETINGS LAW? DO LEGISLATORS FOLLOW THAT?

They don’t have to. The state Supreme Court declared in 2011 that legislative rules trump the open meetings law in a ruling that found Republicans legally convened a committee to revise Walker’s union rights bill without proper public notice.

The Legislature routinely posts agendas and notices of committee meetings and floor sessions but isn’t required to do so. They do meet behind closed doors in party caucuses to hash out their differences over bills, count votes and decide what measures deserve committee consideration and ultimately floor votes. So in essence, the actual grunt work of governing is done in secret.

The Legislature also has prohibited the public from taking photos or video from the Senate and Assembly galleries and allows committee chairmen to ban photography during meetings. The open meetings law requires other governmental bodies to make a reasonable effort to accommodate photography and video recordings.

DO OTHER STATE LEGISLATURES FOLLOW THEIR OPEN MEETING AND RECORDS LAWS?

Thirteen legislatures, including Illinois and Iowa, are exempt from their states’ entire open meetings law and laws in another 15 states are unclear about whether their legislatures are subject to open meeting requirements, according to a 2011 compilation by Ballotpedia, an encyclopedia of American politics.

It’s harder to quantify how many legislatures follow their states’ open records law. Many bodies follow at least some of their states’ laws but have carved out exemptions for different types of records such as lawmakers’ notes, constituent communications and bill drafts.