A New Embrace That Should Have Been an Old Embrace

One reads that, in rejection of a prior administration’s approach, [Wisconsin Attorney General] Kaul Embraces Opens Records Policy:

Wisconsin’s open records law applies to all records requests, big or small. But under former Attorney General Brad Schimel, the Wisconsin Department of Justice implemented a restrictive policy that limited access based on the number of potentially responsive emails.

After being sued by the Center for Media and Democracy (CMD), the Justice Department rescinded its policy and turned over hundreds of records concerning the Affordable Care Act.


CMD filed suit in response and, in the course of the litigation learned that Schimel’s office had adopted a policy of rejecting open records requests based on an arbitrary 500-email threshold.

The DOJ’s rule pertained to potentially responsive emails, not actually responsive emails. Requesters are then pressured to narrow the scope of their request.

The problem? While the open records law does require requests to have “a reasonable limitation as to subject matter or length of time,” there is no “burdensomeness” exception, and the 500-email threshold is not recognized anywhere in state law.

In May, the department backed off in a settlement with CMD that states the policy “is no longer in place and that references to this policy have been removed from the Department of Justice website.” The change came after the state elected a new attorney general, Josh Kaul.

Former Atty. General Schimel began with a commitment to open government, but ended with extra-legal restrictions on public records requests. Wisconsin has a good public records law; she has deserved these recent years better men and women to execute faithfully that good law.

Atty. Gen. Kaul has done better here, but it’s a measure of how badly previous officials performed that doing better means following the law as written.

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