Supreme Court Rules on Open Records

 This looks like a good balance.

The Wisconsin Supreme Court, deciding along ideological lines, said Tuesday that a state agency that oversees public employee union recertification elections can delay the release of voter records to prevent voter intimidation.

Government openness advocates warned that the ruling could have a broad impact on the public’s right to know how its government works because it allows records custodians to consider the perceived motivations of requesters when determining whether to release records.

The court’s 5-2 decision overturns a ruling in Dane County Circuit Court that favored Madison Teachers Inc.

MTI sued the Wisconsin Employment Relations Commission, which in 2015 denied MTI’s requests for lists of teachers who did and did not vote in the annual union recertification election. MTI had sought the records under the state’s open records law, but WERC denied the release of the records during the election because it feared that MTI would use that information to intimidate voters who had not yet voted.

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Roggensack wrote that WERC Commissioner James Scott properly balanced the considerations of the state’s open records law with concerns about voter intimidation before deciding not to release voter records during the election.

“Preventing voter intimidation during elections conducted by phone and email, as occurred here, is challenging,” Roggensack wrote. “Given MTI’s repeated requests for the names of those who voted before the election concluded, it is entirely possible that those employees who had not yet voted would become subject to individualized pressure by MTI of a type that MTI could not exert when speaking to all members of the bargaining unit collectively.”

These records are public and should be released, but there is good reason to not release them as an election is in process. This is especially true when it comes to groups that have a history of using intimidation tactics.