By M.D. Kittle
MADISON — Gov. Tony Evers’ Department of Administration won’t release documents on the damage caused to state buildings during last summer’s riots because doing so would compromise “the integrity” of Dane County District Attorney Ismael Ozanne’s ongoing prosecution.
It’s the latest example of Evers’ closed government practices and his administration’s twisting of the state’s open records laws, transparency experts assert.
Empower Wisconsin has long sought damage estimates and communications involving the Black Lives Matter protests last June that turned destructive and violent in Downtown Madison. A mob smashed Capitol windows, set fire to Madison’s City-County Building, dragged down iconic statues and badly beat a state senator as part of their rampage.
Empower Wisconsin’s latest open records request, after months of silence from DOA, sought all communications relating to the damage of the Wisconsin State Capitol, state-owned buildings and the statues.
DOA recently responded, stating it had received “multiple records requests regarding this matter.” Alas, the agency is unable to respond because the matter is currently the subject of an “ongoing prosecution.”
Administration officials consulted with Ozanne’s office and determined “the release of the requested records at this time (before the preliminary hearing is complete and before discovery is sent to defense counsel) would prejudice the integrity of the prosecution.”
Just what preliminary hearing or prosecution is being considered is not noted in DOA’s response. Ozanne’s office did not return Empower Wisconsin’s request for comment. Dozens of people were arrested on charges of vandalism, looting and violence during last year’s protests.
Green County District Attorney Craig Nolen said DOA’s explanation for keeping the public in the dark doesn’t hold up.
“It’s not a proper response. You can’t defer to the DA on open records requests,” Nolen said, adding he routinely deals with such questions from law enforcement. He advises officers that simply because they turn over information to the district attorney doesn’t give them “carte blanche exemption” from the law. They still must apply a standard common law balancing test before deciding whether they must comply with an open records request.
The Evers administration claims it did just that. It weighed the “strong public interest in effectively investigating and prosecuting criminal activity, avoiding prejudicial pretrial publicity, and protecting the integrity of an ongoing prosecution” versus “any public interest in dlsclosing the records at this time.”
The prosecutor passed the test. Transparency failed.
Tom Kamenick, president and founder of the Wisconsin Transparency Project, took aim at the Evers administration’s legal reasoning.
“If the worst thing that might happen is that people being prosecuted by the government learn some details of the case against them a few days early, that hardly seems like a good reason to hide this information from the public,” the open records law specialist said.
It’s more of the same from an administration that repeatedly has snubbed its nose at open government laws.
But this time DOA promises it’s all just a “temporary delay.” The unnamed case in question was supposed to have a status conference hearing last Friday. It’s not clear what the status of the DA’s case is. What is clear is the records requested in an effort to shed more light on the government’s actions remain locked away.