By Jessica McBride Special to OnMilwaukee.com Published Jul 06, 2015 at 11:26 AM

The opinions expressed in this piece do not necessarily reflect the opinions of OnMilwaukee.com, its advertisers or editorial staff.

First of all, the media are being misleading when they run and air headlines reporting that Republicans and Gov. Scott Walker have "abandoned" or "dropped" the deeply troubling gutting of the state open records law.

They simply removed the changes from the budget, where they were placed in a sneak attack on the citizenry leading into the holiday weekend. They moved the issue to a committee to get "public input." That means it’s not yet dead.

It should be. I’ve used the open records law extensively as a reporter, and I teach it. I believe there is nothing more critical to a functioning democracy than it. As Patrick Henry said, "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them."

A recent example of how the law was used: The reporting on the Wisconsin Economic Development Corporation and those sketchy loans.

The Republicans in the legislature and Gov. Walker should announce, "This is wrong. It will not happen." And that’s what they have not done. In contrast, Republican AG Brad Schimel was resolute and strong in his denunciation of the changes to the open records laws, which he called a "cornerstone of democracy." So, too, were conservative groups like the MacIver Institute and the Wisconsin Institute for Law & Liberty and a slew of conservative pundits. Good for them. In fact, the open records assault accomplished the unthinkable in Walker’s Wisconsin: It united left and right (outside the Joint Finance Committee and governor’s office, anyway). In fact, this debacle created the bizarre spectacle (but kind of refreshing in a way) of Democrat Jon Erpenbach and the conservative MacIver Institute sharing mutual flattery over Twitter.

This was so mind-numbingly dumb and contemptuous of the public that baffled conservatives all over social media actually floated the idea that it was a set up to make Gov. Walker look good. Republicans would pass this, so he could shoot it down, looking like the hero. The problem with that theory (which I don’t believe) is that I don’t think this made Walker look good. Secondly, he’s dodged key questions relating to the debacle. If it was a plot to make him look good, he wouldn’t need to dodge questions.

Plus, his administration has raised the same legal argument that is being advanced here to deny open records requests (more on that in a minute). I’m growing very sick and tired, frankly, of Republicans – whom I have supported on a number of measures, like Act 10, school choice, abortion, concealed carry – taking actions that are just literally not supportable.

This was sort of the legal version of the "secret router" – a measure designed to place the deliberative process of government away from citizen and media scrutiny and the public eye.  It’s worth noting that some of the communications passed along the secret router at the county office building led to criminal convictions for things like campaign fundraising on taxpayer time. And that a judge later ruled they should always have been public record. And it’s worth recalling that Walker has never answered the question of whether he knew about the router.

Some legislators argued they wanted to protect the privacy of constituents; the problem with that is it’s easy to see how "constituents" could pretty quickly come to mean people like Michael Eisenga, that Republican campaign donor who helped draft a now defunct Joel Kleefisch bill changing child support laws. And, anyway, it went much farther than that.  I think the public has a right to know how legislation is made and who is influencing it – lobbyists, average Joes, campaign donors or whomever else. Legislators and other government officials (changes would apply to the governor’s office and local entities like school boards too) are doing the people’s business. The process through which they reach outcomes matters. If everything is on the up and up, what’s to fear from transparency? Furthermore, Republicans could have not released records when sued.

So, here are the 10 most troubling unanswered questions about what’s being called "Openrecordsgate" by the left and the right. Since Walker and Republicans responsible for this are now pledging transparency, we should be getting the answers soon, right?

  1. Who pushed for this? Whose idea was this? And why will no one say? It’s rather ironic, is it not, that legislators are being so secretive about a measure designed to legalize more secrecy? Actually, it’s not ironic. It’s consistent. In fact, the legislative silence – legislators walking away from reporters and refusing to answer such basic questions – demonstrates the need for transparency in the deliberative process in the first place. I think the public is entitled to know the answer to this question. It’s arrogant for legislators to remain silent.

  2. What did Gov. Walker know, when? Did the governor – or his staff – push for these changes? Did they know about them in advance and not oppose them? Is it true, as one Democrat claimed, that Walker or his staff made it clear to the Republicans on the JFC that he would not veto the measures? However, Walker, when asked this question by the media, did not give a straight answer. Here is what he said, in part, "Again, those are all things we'll talk about on Monday. We'll talk about what we're doing going forward."

    This is mind-boggling in its obfuscation. At least he didn’t say it’s old news like he did about the router. But what if we want to talk about what happened leading up to it? The media should not let the governor get away with this. Guess what? It’s Monday, and we want the answer to this question. The governor also said, "There's all sorts of ideas that float around the Capitol before the end of the Joint Finance Committee process." Um, this was not just an idea that floated around the Capitol. Every single Republican on the JFC voted for it.

    The Wisconsin Center for Investigative Journalism has also noted similarities between Walker’s office and the state Department of Administration citing "deliberative process" arguments when denying recent open records requests, such those seeking information into the botched proposed rewriting of the Wisconsin Idea and one about Walker’s proposal to kill the IRIS program (the denial over the Wisconsin Idea records is now in court; the legislative changes would essentially adopt the "deliberative process" argument for withholding).

    This sets up the possibility that the changes were made to shield Walker from his own bad proposals as his presidential campaign gears up.  Or to win the lawsuit by changing the law.

  3. Why put this in a "Legislative Council Committee" to garner public input at all? Why not just say, "This is wrong. This will not happen"? Does this mean the changes are still on the table? Who wants them to be? Why? If it’s one of those committees in which to bury the issue in the deep, never to hear from it again, why not just have the guts to kill it outright and not waste anyone’s time?

  4. To each of the legislators who voted for this on JFC: Why? What was your rationale?

  5. Why did the measure push the start date of the changes back to July 1, rather than the day the bill would actually become law? Was the retroactive start date created so the public and media wouldn’t be able to figure out who pushed for this?

  6. Why did no one run on this, inform the public of it in advance or solicit public opinion on it in advance of the JFC vote? Why the sneak attack? It’s becoming a pattern. Republicans surprise the electorate with things no one ran on. I don’t think that’s right. Why make such sweeping and integral changes on the sly right before July 4? It undermines trust.

  7. How is this not "big government"? For a party that claims to not trust government, why give the citizenry less ability to perform a watchdog function over government?

  8. How was this a "fiscal matter" that ever belonged in the budget? Yes, that’s a rhetorical question. But someone should explain why this belonged in the budget in the first place. Whose idea was that?

  9. Since this has been dropped from the budget, will Gov. Walker’s administration now drop its "deliberative process" arguments and release the records on the Wisconsin Idea and other issues where that argument has been used to deny them? After all, the legislature wouldn’t need to make this change if it was not already law, right? By voting to put the deliberative process outside public scrutiny, wasn’t the legislature acknowledging that the deliberative process falls under open records law disclosure right now? Otherwise, why was the vote needed? Since this is being pulled from the budget, Gov. Walker’s administration will promptly release those records and comply with existing open records laws ... right?

    It's very disingenuous at best for Walker to act like he's against the open records changes publicly when his office is trying to claim the very same argument for denying open records requests. So much for transparency. If he truly stands for transparent government and opposes these changes, release the requested documents and drop the "deliberative process" argument.

  10. What the heck were they thinking? 
Jessica McBride Special to OnMilwaukee.com

Jessica McBride spent a decade as an investigative, crime, and general assignment reporter for the Milwaukee Journal Sentinel and is a former City Hall reporter/current columnist for the Waukesha Freeman.

She is the recipient of national and state journalism awards in topics that include short feature writing, investigative journalism, spot news reporting, magazine writing, blogging, web journalism, column writing, and background/interpretive reporting. McBride, a senior journalism lecturer at the University of Wisconsin-Milwaukee, has taught journalism courses since 2000.

Her journalistic and opinion work has also appeared in broadcast, newspaper, magazine, and online formats, including Patch.com, Milwaukee Magazine, Wisconsin Public Radio, El Conquistador Latino newspaper, Investigation Discovery Channel, History Channel, WMCS 1290 AM, WTMJ 620 AM, and Wispolitics.com. She is the recipient of the 2008 UWM Alumni Foundation teaching excellence award for academic staff for her work in media diversity and innovative media formats and is the co-founder of Media Milwaukee.com, the UWM journalism department's award-winning online news site. McBride comes from a long-time Milwaukee journalism family. Her grandparents, Raymond and Marian McBride, were reporters for the Milwaukee Journal and Milwaukee Sentinel.

Her opinions reflect her own not the institution where she works.