Public Records Board rescinds transitory definition

By Julia Hunter
WNA Member Services Director
Public Records Board

Public Records Board member Carl Buesing (left) discusses the board’s Aug. 24, 2015, decision during a meeting Monday, Jan. 11, 2016, in Madison as board member Bryan Naab looks on. (Julia Hunter photo)

Following public outcry, the Wisconsin Public Records Board rescinded its Aug. 24, 2015, action that changed the definition of transitory records.

The board received nearly 2,000 letters and emails opposing the decision prior to Monday’s meeting. About 15 residents voiced concerns in person.

The state’s record retention schedule will still include language regarding transitory records but will revert back to the 2010 definition.

Critics voice opposition

Attorney James Friedman of Godfrey & Kahn, the law firm that represents the WNA, and Andrew Johnson, publisher of the Wisconsin Free Press Group, spoke on behalf of the newspaper industry. Both urged the board to reconsider and reverse its decision.

Johnson pointed out that the usefulness of a record might not immediately be apparent to a records custodian.

“Some communications may be fleeting and have little apparent significance for the public record,” Johnson said. “But as any diligent newspaper reporter will tell you, sometimes the path a message takes, who touches it, who reads it and where it went from there is exactly what is needed to complete the picture about the purpose of that document.”

Government transparency advocates worried the change created a loophole that would allow officials to delete public records.

“The Board’s role, as you know, is to assist state and municipal government actors in preserving government records and deciding how long to keep those records,” Friedman said. “It is not the Board’s role, however, to sanction — intentionally or inadvertently — the immediate destruction of substantive and significant public information.”

Board defends action

Board members said it wasn’t their intent to narrow the scope of what was released to the public. In fact, they had hoped to do the opposite.

Chairman Matthew Blessing said the definition of transitory records adopted in 2010 — the one that will now stand — was vague and used jargon. He admitted, however, that the Aug. 24 definition also had its “weaknesses.”

“Did we do a good job in our description refinement?” asked Carl Buesing, who sits on the board. “Did we do a good job in our examples? I don’t know, but that was the effort.”

Board members also attempted to distance themselves from recent attempts to dismantle openness and accountability, including the July 4, 2015, debacle during which legislators inserted language into a last-minute budget motion. If the move would have succeeded, it would have crippled the state’s public record law.

“I, frankly, am upset with any assertion that there’s a linkage between whatever the legislature may have tried to do in July of 2015 and what the Public Records Board did in August of 2015,” Buesing said.

“I have not been asked to carry the water for Robin Vos or anybody else.”

Looking forward

Blessing said the board could revisit the issue of transitory records in the future, but did not want to get into the “editorial process” during the meeting.

Retention provisions must be revisited every 10 years. Since the board reverted back to the 2010 definition, it must reassess the issue of transitory records by 2020.