American Oversight Asks Court to Force Wisconsin Election Investigation to End Its ‘Alarming’ Practice of Regularly Deleting Records

Despite several court orders requiring the Wisconsin Assembly’s Office of Special Counsel (OSC) to release public records related to its partisan election investigation, American Oversight has learned that the office has been regularly deleting records under the incorrect view that it is not subject to the state’s public records retention law — and that records OSC deleted include those responsive to American Oversight’s public records requests.

On Wednesday, American Oversight filed two briefs in our lawsuit against OSC, seeking additional damages and asking that the court grant a temporary injunction barring the office from deleting records while the court considers further relief.

American Oversight learned of OSC’s unlawful and alarming record-keeping practices in a letter accompanying a recently released set of documents. The letter from OSC’s counsel also indicated that its position was that it was not generally required to retain records absent a pending open records request — a view that was rejected more than six months ago by the Wisconsin Legislative Council and is in clear contravention of state law.

On March 8, a Dane County Circuit Court judge ordered the release of public records OSC previously produced to the court on Jan. 31 pursuant to a court order in response to American Oversight’s requests and lawsuit. That same day, OSC released 761 pages of records, as well as a second amended version of the Assembly’s contract with Michael Gableman, the lawyer heading the ongoing investigation of the 2020 election. After having determined that OSC had not produced all of the requested records, American Oversight sent a letter on March 25 to OSC’s counsel highlighting the gaps in the records.

On April 8, OSC responded to the letter and released 97 additional pages of documents to American Oversight, which included previously unseen contract agreements related to the election probe. 

The cover letter attached to this production of documents — which OSC said it had “inadvertently failed to include” in its earlier production to the court — illuminated troubling details about OSC’s deletion practices, stating that absent a pending open records request, the office “routinely deletes documents and text messages that are not of use to the investigation.” 

According to Wisconsin’s Public Records Retention Law, state agencies are required to maintain and preserve records in their custody. In a memo issued Oct. 1, 2021, the Wisconsin Legislative Council affirmed that OSC must comply with that law.

In the briefs filed Wednesday, American Oversight asked the court to bar OSC from further destruction of documents in its custody, a practice that makes it nearly impossible for individuals to access public records. We also asked the court to consider modifying its earlier judgment, either with a contempt order or increased punitive damages, in light of OSC’s admissions that it had omitted records that should have been produced in response to court orders and that it had deleted records responsive to American Oversight’s public records requests. 

“Every day that passes without the Court’s intervention is a day when more records are deleted and the status quo is irreparably altered,” American Oversight stated in its brief. 

Read the most recent updates on our work in Wisconsin here.