AG opinion means accountability board’s John Doe secrets are safe — for now

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — It appears the state Government Accountability Board will be able to keep its secrets from the public eye.

In an opinion issued Thursday, Wisconsin Attorney General J.B. Van Hollen said the GAB “may not” turn over its confidential investigative records to the Legislative Audit Bureau because “there is no specific authorization for it do so.”

Now the leaders of the Legislature’s audit committee say they might change the law to open up the records.

The Legislature has provided specific authorizations of confidential information in other circumstances, Van Hollen wrote, but the audit bureau’s right to access documents under Wisconsin statute only provides a “general right” access, and no specific authorization to access confidential records.

Van Hollen’s ruling effectively keeps secret the records GAB investigators have collected in the long-standing John Doe investigation into dozens of conservative targets. That’s important, because a detailed audit might show whether GAB, which oversees state campaign and election law, overstepped its authority in a probe that has featured what sources have described as predawn, “paramilitary-style” raids.

The plot thickens more so, now that a federal judge has ordered the investigation halted and declared the legal theories of John Doe prosecutors and the GAB — that at least 29 conservative groups may have illegally coordinated with Gov. Scott Walker’s campaign — “simply wrong.”

State auditors have been conducting a thorough review of the GAB’s financial records, at the request of lawmakers.

Kevin Kennedy, GAB’s director and general counsel, resisted turning over certain “confidential” information to the audit bureau, according to state Sen. Robert Cowles, co-chairman of the Legislature’s Joint Audit Committee. Kennedy asked the attorney general whether GAB could provide its investigative records to the bureau when state statute only allows those records to be disclosed when “specifically authorized by law.”

In advising the GAB to maintain its secrecy, Van Hollen said the matter turns on the word “specifically.”

He said state law pertaining to the matter doesn’t specifically address the accountability board or even explicitly grant the audit board the “general right to obtain documents made confidential by other statutory sections.”

“These general powers and duties do not satisfy a common, ordinary understanding of ‘specific authorization,’” Van Hollen wrote.

Basically, GAB only has to make public what is already public, according to the attorney general’s reading of the law. And when it comes to confidential investigations, the board doesn’t have to be accountable.

Van Hollen says GAB has a “privilege” to disclose the investigatory information “in the normal course of an investigation or prosecution,” the privilege to disclose the investigatory information to any “local, state, or federal law enforcement prosecutorial authority,” and the privilege to disclose the investigatory information to a subject of the investigation, the subject’s attorney, and the board’s attorney.

Kennedy said the attorney general’s opinion reaffirms the law the Legislature passed when it created the GAB in 2006, to protect the confidentiality of investigative records — a law the board has “zealously followed,” according to Kennedy.

“The Legislature created these confidentiality laws to avoid jeopardizing investigations and to protect people who may be subject to complaints or investigations while the GAB reviews the matter and until certain resolutions are reached,” Kennedy said in a statement to Wisconsin Reporter. “The board and its staff have always taken the confidentiality laws and the criminal penalties for violation very seriously.

Kennedy said the GAB wanted to “fully cooperate” with the audit bureau “to the extent permitted by law,” so it sought guidance from Van Hollen.

“The GAB will continue to cooperate with the LAB consistent with the AG’s opinion, and we look forward to completion of that audit,” Kennedy wrote.

The audit, originally slated for release in June, has been pushed back until late summer or fall, Cowles said.

In a joint statement, Cowles, R-Green Bay, and state Rep. Samantha Kerkman, R-Salem, the other co-chair of the Joint Legislative Audit Committee, said they will push to change the law to conduct a full audit.

“It benefits the Legislature and the State for the nonpartisan Legislative Audit Bureau to use its broad authority to access any records it needs to conduct audits that provide oversight of state agencies and operations,” the lawmakers said. “Any needed statutory clarifications will be pursued in the next legislative session.”

But that’s a long time to wait for conservative targets of an investigation that sources assert has stolen their constitutional guarantees — principally their First and Fourth Amendment rights.

And then there is the question of just how much taxpayers are paying for the GAB’s “confidential” activity.

One target, who spoke on condition of anonymity, charged that the GAB is hiding behind confidentiality to avoid answering basic questions about activities and expenditures.

More urgently, the source asserts, the GAB doesn’t want any disclosures about its role in the John Doe.

GAB had no further comment.

The accountability board is being sued by conservative activist Eric O’Keefe and the Wisconsin Club for Growth on behalf of state taxpayers on allegations the GAB has spent state money on an investigation it had no statutory authority to conduct.

Kennedy and the GAB have been under the Legislature’s radar in recent years, with some Republican lawmakers in particular concerned about the agency’s handling of election and campaign law.

Cowles called the questions surrounding the laws a “murky set of circumstances,” but acknowledges the Legislature is ultimately responsible for any lapses or loopholes the laws may have created.

“It looks like we’ve got to change the statute, that’s for sure,” the senator said, adding he believes the forthcoming audit of the GAB will be valuable.

State Sen. Tom Tiffany, R-Hazelhurst, who has in recent months asked the GAB to answer some questions on its activities, said next session doesn’t deal with the thorny issues the state is faced with in the “here and now.”

“I’ve been reviewing the AG’s position, and I don’t agree with it,” Tiffany said. “I think that the GAB should be releasing some information.”

The senator said he was in the process of drafting a letter asking Van Hollen to require the GAB to release at least the financial information tied to the John Doe investigation.

“Yes, there need to be changes next legislative session, but I think now, while we don’t want to jeopardize any investigation, some questions should be answered. How many hours have they been working on this? What is the compensation?” Tiffany asked. “These are basic issues the public should know. The GAB doesn’t need to hide, and I don’t think it compromises the investigation.”