American Oversight, Wisconsin Office of Special Counsel settle lawsuit over document retention policies

Today, American Oversight and the Wisconsin Office of Special Counsel (OSC) settled a lawsuit concerning OSC’s failure to retain public records from its discredited inquiry into the 2020 election and to produce them in response to American Oversight’s public records requests. In the settlement, OSC admitted that its destruction of records violated state law.

The office, created by Wisconsin Assembly Speaker Robin Vos in 2021 in response to baseless claims about election fraud, was headed by former state Supreme Court Justice Michael Gableman. Through litigation, American Oversight learned that the office had routinely deleted records in violation of the state’s records retention law, and in 2022 sued to prevent further destruction of public records, represented by Democracy Forward and Pines Bach LLP. 

“We are pleased the Wisconsin Office of Special Counsel has finally acknowledged it is subject to the state’s records retention law, and more importantly, that it has stopped destroying records that should have been preserved,” said Chioma Chukwu, Deputy Executive Director of American Oversight. “This settlement is a victory not just for American Oversight, but for the people of Wisconsin who are entitled to these documents. It’s imperative that all Wisconsin agencies follow the law by preserving access to public records.”

During a June 2022 hearing in one of American Oversight’s separate lawsuits for records from the partisan election inquiry, Gableman testified that he had deleted records from the early months of his review, stating: “Did I delete documents? Yes, I did.” Two months prior, an attorney representing OSC had stated that the office “routinely” destroyed records “not of use to the investigation.”

Multiple courts in Wisconsin ordered OSC to turn over records to the public, and the 2022 lawsuit from American Oversight asked a court to affirm that the state’s retention law protects the public’s right to those records. OSC fought the lawsuit for months, but in a Feb. 16 filing the office admitted liability and agreed to jointly request a court order holding that it was subject to and in violation of the retention law.

“This is a big win for our democracy,” said Skye Perryman, President and CEO of Democracy Forward. “By acknowledging that they violated the law, the Office of the Special Counsel is making clear that people have a right to know how public money is spent and what their representatives are up to. This outcome ensures that no one can claim to be above the law or exempt from open records rules.” 

As part of the settlement, the OSC acknowledged having violated the Wisconsin Public Records Retention Law, and confirmed that it will comply with the law going forward and preserve public records as required by that law. Relatedly, OSC agreed not to delete or destroy any of its records other than in compliance with any record retention schedule approved by the state public records board. 

The parties’ settlement will bind the OSC in the future, should the office ever reopen. Now that it’s been approved by the court, the judgment may also be instructive for other public bodies that, like the OSC, contend they are not subject to the Public Records Retention Law.