THE LATEST: On September 27, 2022, Democracy Forward argued in Dane County Circuit Court in Wisconsin against the Office of Special Counsel’s (OSC) motion to dismiss the lawsuit we filed (with Pines Bach, LLC) on behalf of watchdog group American Oversight. We also argued in support of our motion for a temporary injunction to ensure that no more public records are destroyed.
BACKGROUND
On August 12, 2022, Wisconsin Assembly Speaker Robin Vos fired Michael Gableman and announced plans to dissolve the OSC. 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—ignoring overwhelming evidence that Wisconsin’s election results were sound.
Despite spending nearly a million taxpayer dollars, the inquiry 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 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.
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.
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.