New Lawsuit Filed to Stop Wisconsin Election Investigators’ Destruction of Public Records

On Tuesday, American Oversight, represented by Democracy Forward and Pines Bach LLP, filed a lawsuit and emergency motion to stop the Wisconsin Office of Special Counsel (OSC) from deleting public documents in violation of the state’s public records retention law. The lawsuit comes less than a week after Michael Gableman, who heads OSC and is running Wisconsin’s partisan inquiry into the 2020 election, testified in court that he has deleted records of the investigation, 

Testifying in a hearing last Thursday in a separate lawsuit brought by American Oversight, Gableman clearly stated that he had deleted records from early months of his work on the election review, saying: “Did I delete documents? Yes, I did.”  

OSC’s actions are contrary to Wisconsin law. Wisconsin’s public records retention law states clearly that “public records may not be disposed of without the written approval of the [public records] board.”

The suit, filed Tuesday in the Circuit Court of Dane County, follows Gableman’s recent comments and OSC’s previous admission of a “standard procedure” of “routinely” destroying public records. American Oversight is asking the court to issue a temporary restraining order and injunction requiring OSC to immediately halt the ongoing destruction of any public records, regardless of whether the documents are the subject of a pending public records request. American Oversight’s filings explain that stopping the deletion of records now is necessary to preserve the public’s ability to request and obtain those documents in the future. 

The taxpayer-funded OSC was created by the Wisconsin Assembly in August 2021 to examine claims made by former President Donald Trump and his supporters about the integrity of the 2020 presidential election, despite overwhelming evidence that Wisconsin’s election results were sound. To date, after spending nearly a million taxpayer dollars, the inquiry headed by Gableman has uncovered no credible evidence of irregularities that could have altered the outcome of the election. 

Over the past year, American Oversight has submitted multiple public records requests seeking documents from the Assembly and OSC related to the conduct, expenses, and aims of the election inquiry, and was forced to file three prior lawsuits under Wisconsin’s public records law to compel the release of documents.

Through those lawsuits, American Oversight has learned that OSC has an ongoing practice of deleting or destroying records. 

• In an April 8 letter in relation to one of American Oversight’s lawsuits, an attorney representing OSC stated that the office “routinely deletes documents and text messages that are not of use to the investigation,” defining such documents as including those “that the OSC is not intending to further investigate, and is not intending to rely upon for its recommendations or reports.” 
• In a June 6 deposition, Gableman aide Zakory Niemierowicz testified that OSC chooses to preserve only documents that “may have future importance or future references that we want to note.” Niemierowicz further testified that only a “minority of [his] electronic communications would have been produced” in response to American Oversight’s requests and litigation “because of [OSC’s] routine procedure of clearing out documents.” 
• Speaking to reporters on June 10 following a court hearing, Gableman again confirmed that he and his office routinely delete or destroy records, saying: “If I had to keep every scrap of paper, I would do nothing else. I would need a warehouse.”

“The OSC has deleted public records that don’t suit the faux election-fraud narrative, unabashedly flouting Wisconsin law,” said American Oversight Senior Adviser Melanie Sloan. “Citizens should have the opportunity to evaluate the OSC’s report for themselves based on the entire record, not just on the documents Gableman wants people to see.”

“The OSC is not above the law,” said Jessica Morton, Senior Counsel at Democracy Forward. “By shielding its work from scrutiny through the deletion of public records, the OSC is undermining Wisconsin’s democratic values and harming the public’s ability to understand the actions the OSC is taking, analyze the complete scope of the evidence the OSC has or has not uncovered, and assess the veracity of the OSC’s conclusions. We urge the court to put an end to the OSC’s brazen destruction of public records.”  

In two of American Oversight’s previous lawsuits, judges have already issued orders prohibiting OSC or the Assembly from deleting or destroying documents that may be responsive to records requests at issue in those cases. The restraining order and injunctions sought in Tuesday’s lawsuit would bar the deletion of any public records in the custody of OSC, including those that have not yet been requested by the public.  

Read the complaint here.

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