Court Rules Wisconsin Agency Violated Open Records Law

by | September 15, 2016

By Patrick Marley

A Dane County judge on Monday ruled a state commission violated the open records law last year when it refused to quickly turn over information about a union election.

"I just find that (this case) is a violation of the open records law. I do believe it is appropriate for this court to enter a declaration to that effect," Dane County Circuit Judge Peter Anderson said.

He called the Wisconsin Employment Relations Commission's decision not to release records to a Madison teachers union "pretextual," "thin on consistency" and an apparent attempt to make it harder for the union to retain its ability to negotiate over wages. Commission officials said they would appeal.

Under the 2011 labor law known as Act 10, most public-sector unions must hold annual elections to determine whether they can continue to bargain for raises.

The unions must win support from 51% of all eligible members, not just those who cast votes. In effect, if someone doesn't cast a ballot, it counts as a "no" vote.

The elections are overseen by the commission and held over 20 days, with ballots cast over the phone and over the Internet. Unions want to monitor who is voting so they can encourage those who haven't done so to cast their ballots.

The union Madison Teachers Inc. on Nov. 10 sought documents under the open records law that would show who had voted so far in the election that ran from Nov. 4 to Nov. 24. The commission's chairman, James Scott, denied the request while the election was ongoing.

After the election -- which the union won overwhelmingly -- the commission released records showing who had voted.

The union then sued the commission, a three-member panel appointed by Republican Gov. Scott Walker, the architect of Act 10.

The commission had to promptly make available information about who had voted because the records law requires documents to be produced "as soon as practicable and without delay," the union argued in its lawsuit.

Anderson agreed the records were wrongly withheld. He said the matter was important to resolve because it could come up again this fall, when hundreds of public-sector unions will hold elections.

The commission maintained it could not release the records while the election was pending because doing so could result in "voter coercion." It also contended releasing the records would undermine the secrecy of the ballots because non-votes are considered "no" votes.

Anderson called that logic inconsistent because the commission ultimately did release information about who had voted and who hadn't.

By keeping that information from the union while the election was ongoing, the commission made it harder for the union to win the election because it could not target its get-out-the-vote efforts to those who had not yet voted, Anderson said.

Anderson said he would likely have taxpayers pay the union for its legal fees, as is typical when those bringing lawsuits prove the government wrongly kept records from them. He will decide that issue in November.

The union is also seeking $1,000 in punitive damages.

The union's attorney, Susan Crawford, said Monday's decision set an important precedent that would help public-sector unions around the state in the next round of elections.

Scott issued a statement saying the commission would appeal.

"The principle of keeping one's vote secret during the election is essential to conducting a fair election," his statement said.

(c)2016 the Milwaukee Journal Sentinel