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Brad Schimel criticizes ethics records storage, but mischaracterizes law

The Wisconsin Ethics Commission and its predecessor have been criticized by Attorney General Brad Schimel for holding on to records of past investigations, though nothing in state law requires past records to be destroyed.

Attorney General Brad Schimel is criticizing the former Government Accountability Board for keeping decades of closed investigatory files in storage, calling it evidence the agency was “weaponized to achieve partisan advantage.”

But officials with the new state Ethics Commission and the chairman of the Public Records Board, which oversees the rules for when state agencies can dispose of records, are contradicting Schimel’s interpretation of the law, noting nothing in state law requires records be destroyed.

The Ethics Commission administrator also explained the records have been kept for reference purposes to ensure current and future investigations are handled fairly.

Schimel’s statement about records comes in the wake of his recent leak investigation into records from the now-shuttered investigation into Gov. Scott Walker’s 2012 recall campaign. Schimel was unable to find who leaked the records to the Guardian U.S. newspaper, but recommended nine people face contempt-of-court proceedings.

Schimel’s leak investigation report has been criticized for errors and omissions, including that he referred to an authorized GAB ethics investigation as a “John Doe III” with no discernible limit, even though it wasn’t a John Doe investigation and was closed in March 2013 with no charges recommended.

In two statements last week, Schimel has characterized the GAB keeping certain investigative records on file as a “violation” of the agency’s rules for disposing of records. One rule says records of an ethics investigation resulting in no charges can be destroyed six years after the case is closed.

“It appears that GAB did not honor the public records law regarding final disposition of records, and instead kept select files on hand to serve as a library of past allegations to be referenced in some future investigation or dispute,” Schimel said.

But Matthew Blessing, chairman of the Public Records Board, said there is no law requiring records be destroyed after a certain time period. The rule that Schimel referenced is a minimum period of time the record must be kept, after which the agency is permitted to destroy the record, but isn’t required to do so.

“There is nothing in the Public Records Board’s mission to keep an agency from retaining (records) longer than the (retention rules) suggested,” Blessing said.

Blessing said the Public Records Board discussed at its November meeting whether all state records should be disposed of when the rules prescribe, but decided to keep the rules as minimum requirements.

Ethics Commission administrator Brian Bell noted the specific rule that Schimel referenced in his statement wasn’t created until last month’s Public Records Board meeting, at the request of the Ethics Commission.

Previously the agency’s records retention rules treated both investigations that resulted in charges or other action and those that didn’t the same. The records had to be kept for 10 years before they could be sent to the Wisconsin Historical Society archives.

The new rule, which the Ethics Commission adopted at its August meeting, says all records must be kept for six years, after which records for investigations that resulted in some kind of action may be sent to the historical society archives and records for investigations that didn’t result in any action may be destroyed.

The new rule states “there is limited value in maintaining records that did not result in any action.”

“The commission took a very proactive step to handle records differently,” Bell said.

Neither the old nor new rules require that records be destroyed, Bell said. The agency and its predecessor held on to records of past investigations in order to mete out penalties consistent with past practice.

A Schimel spokesman didn’t respond to a request for comment.