Wisconsin Supreme Court bars access to public records created during union recertification elections

From Madison Teachers Inc.

Madison Teachers Inc. filed an action in Dane County Circuit Court in 2015 challenging the Wisconsin Employment Relations Commission’s (WERC) refusal to release voter lists during annual Union certification elections. Dane County Judge Peter Anderson ruled in favor of MTI and held that the WERC was required to produce the certification voter lists requested by the Union under the Public Records Law during the election period. The Wisconsin Supreme Court overturned the ruling in a decision released this morning, essentially adopting a new court-made exemption to the state’s broad Open Records law.

In a blistering dissent. Justice Ann Walsh Bradley stated:

“Despite Wisconsin’s longstanding public policy favoring transparency, for the third time in three years this court continues to undermine our public records law. Yet again, this court overturns a lower court decision favoring transparency of records to which the public is rightfully entitled. Once more we must ask, ‘[w]hat has the majority achieved with its opinion grounded in speculative, abstract, and unsubstantiated fears?”’”

The decision blocks the union’s access to a public record of the employees who have voted as of the mid-point of the 20-day election period. MTI was not seeking a record of “how” employees voted (that is rightfully kept confidential), but only a list of voters who had cast a ballot.

Since Act 10 was enacted, which requires public employee unions to stand for recertification elections every year, the WERC has provided the union with the information on who has voted only after the election was over. The decision will uphold the secrecy of WERC’s recertification elections, which it conducts entirely by electronic balloting.

Historically, and under WERC’s election rules, unions have a right to observe and monitor certification elections. As a result of the Court’s decision, unions will as a practical matter have no effective way to monitor the WERC’s administration of the elections or to track voting, as they would if WERC conducted elections at a physical polling place.

The Court’s decision will have far-reaching consequences for the Open Records law and is a blow to transparency and open government.