THE LATEST: On July 5, 2022, a Dane County Circuit Court judge granted a temporary restraining order preventing the Wisconsin Office of Special Counsel (OSC) from deleting public records in violation of the state’s public records retention law.

This order was issued in response to a lawsuit filed on June 28 by Democracy Forward and Pines Bach LLP, on behalf of American Oversight. The lawsuit was filed after Michael Gableman, the head of the OSC,  stated under oath that he had deleted records from the early months of his work on the election review.

Statements upon issuance of the July 5 order:

“It is absurd that a government office purportedly established to build public trust would require multiple court orders telling them not to delete public records. Unfortunately, Mr. Gableman’s own admission that he routinely destroyed documents makes our lawsuit and today’s restraining order completely necessary. We will continue to fight for the public’s right to transparency. That begins with making sure no more records are deleted in violation of the law.” – Dan Schwager, Chief Counsel at American Oversight

“We are pleased the court took this action today,” said Jessica Morton, Senior Counsel at Democracy Forward. “The OSC is not above the law. Its efforts to shield its work from scrutiny through the deletion of public records undermines Wisconsin’s democratic values and the public’s ability to understand the actions it is taking. We will continue to work with our colleagues in this fight for the public’s right to transparency.” – Jessica Morton, Senior Counsel, Democracy Forward

 

BACKGROUND

To date, despite spending nearly a million taxpayer dollars, the inquiry headed by Michael Gableman–head of the OSC–has uncovered no credible evidence of irregularities that could have altered the outcome of the election. 

Wisconsin has long recognized that transparent governance–the public’s ability to know what public agencies are doing–is a bedrock of democracy. That’s why Wisconsin’s public records retention law is clear and unambiguous: “public records may not be disposed of without the written approval of the [public records] board.”  Wis. Stat. § 16.61. 

Despite that, the OSC has brazenly admitted to a “standard practice” of “routinely” destroying public records without board approval, a flagrant violation of Wisconsin’s public records retention law.

Over the past year, American Oversight has submitted multiple open records requests seeking documents from the Wisconsin Assembly and the OSC related to the conduct, expenses, and aims of the election inquiry—and has been forced to file three prior lawsuits under Wisconsin’s open records law to compel the release of documents.

Through those lawsuits, American Oversight has learned that the OSC has an ongoing practice of deleting or destroying records. 

  • In an April 8 letter in relation to one of American Oversight’s lawsuits (21-CV-3007), an attorney representing the OSC stated that the office “routinely deletes documents and text messages that are not of use to the investigation,” defining such documents as including those “that the OSC is not intending to further investigate, and is not intending to rely upon for its recommendations or reports.” 
  • In a June 6 deposition, Gableman aide Zakory Niemierowicz testified that the OSC chooses to preserve only those documents that “may have future importance or future references that we want to note.” Niemierowicz further testified that only a “minority of [his] electronic communications would have been produced” in response to American Oversight’s requests and litigation “because of [the OSC’s] routine procedure of clearing out documents.” 
  • Speaking to reporters on June 10 following a court hearing, Gableman again confirmed that he and his office routinely delete or destroy records, saying: “If I had to keep every scrap of paper, I would do nothing else. I would need a warehouse.”

On June 28, American Oversight, represented by Democracy Forward and Pines Bach LLP, filed a lawsuit and emergency motion to stop the Wisconsin Office of Special Counsel (OSC) from deleting public documents in violation of the state’s public records retention law. The complaint was filed in the Circuit Court of Dane County, Wisconsin. 

The taxpayer-funded OSC was created by the Wisconsin Assembly in August 2021 to examine claims made by former President Donald Trump and his supporters about the integrity of the 2020 presidential election—despite overwhelming evidence that Wisconsin’s election results were sound.

American Oversight asked the court to issue a temporary restraining order and injunction requiring the OSC to immediately halt the ongoing destruction of any public records, regardless whether the documents are the subject of a pending public records request. The filings explain that stopping the OSC’s admitted deletion of records now is necessary to preserve the public’s ability to request and obtain those documents in the future.

Last Updated: July 6, 2022