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Legislature’s plans for new HR office raises concerns

June 23, 2021 GMT

MADISON, Wis. (AP) — The Wisconsin Legislature is moving to formally create a new human resources department that would handle complaints about lawmakers, including the resolution of any investigation, raising concerns about whether the information would be subject to the state’s open records law.

A bill creating the Legislative Human Resources Office was introduced and passed out of the Legislature’s Joint Finance Committee on Wednesday. No one testified and the bill passed on a unanimous, bipartisan vote with no discussion. The full Senate and Assembly must approve the measure, and Democratic Gov. Tony Evers would have to sign it, before it becomes law.

The bill says the office “shall at all times observe the confidential nature of records, requests, advice, complaints, reviews, investigations, disciplinary actions, and other information in its possession relating to human resources matters.”

Bill Lueders, president of the Wisconsin Freedom of Information Council, said he was concerned that wording gives the office “the ability, if not the mandate, to withhold records.”

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“That should not happen,” Lueders said. “Legislators and their staffs ought to face higher levels of transparency and accountability, not lower ones.”

But James Friedman, attorney for the Wisconsin Newspaper Association, said the wording essentially maintains the status quo and does not amount to a specific exemption to the open records law.

“Without expressly saying records are off limits, I don’t see that provision doing much,” Friedman said. “Are there going to be fights based on that? Probably.”

The bill was introduced by the Joint Finance Committee. The panel’s Republican co-chairs, Sen. Howard Marklein and Rep. Mark Born, did not immediately return messages seeking comment.

The bill comes a year after The Associated Press and three other news organizations sued the Legislature seeking access to all records related to allegations of sexual harassment made against a Democratic legislator.

Reporters from the AP, the Wisconsin State Journal, The Capital Times and the Milwaukee Journal Sentinel filed open record requests with then-Assembly Chief Clerk Pat Fuller seeking copies of the complaint and documents created during the investigation.

Fuller denied the requests. The office handling human resources for the Legislature told the AP and other outlets at the time that it treats internal employee complaints as confidentially as possible and that respecting the privacy of the complainant and witnesses outweighs the public interest in disclosing the documents.

The state open records law allows records custodians to apply such balancing tests when deciding whether to release records.

The proposed language about observing the confidential nature for records handled by the new human resources office will weigh into the balancing test, but doesn’t mean no record should be released, Friedman said.

The AP and the three newspapers argued in the lawsuit that Wisconsin’s open records law presumes complete access to government records and denial of such access is contrary to the public interest. That lawsuit is pending.