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Prohibitions Against Release of Information Apply Only To Prosecutors and Investigators Working For, Or Retained By, The Government Accountability Board.
MADISON - Responding to an inquiry from Portage County District Attorney Thomas B. Eagon, Attorney General J.B. Van Hollen today issued a formal opinion concerning the scope of the prohibition on release of information and records pertaining to investigations under Wisconsin's elections, ethics and lobbying laws.
In 2007, the Wisconsin legislature created the Government Accountability Board ("GAB") by combining the functions of the Ethics and Elections Boards. In addition, the legislature gave the newly-created GAB the power to investigate and prosecute offenses against the state's elections, ethics, and lobbying laws. It simultaneously placed certain restrictions on the disclosure of information and records pertaining to those investigations. The restrictions come with significant penalties: any person violating them can be fined up to $10,000 and imprisoned for up to 9 months, or both.
It was clear that the legislature intended those restrictions to apply to the GAB and its staff and retained agents, but the Portage County District Attorney, Thomas Eagon, wanted to know whether the restrictions also applied to district attorneys and law enforcement agents. Even before the creation of the GAB, Wisconsin's district attorneys and law enforcement agencies had the power to investigate and prosecute offenses under the elections, ethics and lobbying laws. Eagon's concern arose from the fact that the new statute used the terms "investigator" and "prosecutor" to identify some of the persons covered by the prohibition, and those terms would ordinarily include, among others, district attorneys and law enforcement officers.
Van Hollen concluded that "[w]hile the generic terms 'prosecutor' and 'investigator' can have a broad connotation when taken out of context, the text and structure of Wis. Stat. 12.13(5) demonstrate that the legislature used those terms in a more limited sense, to refer exclusively to the prosecutors and investigators who are either employed by, or are retained by, the GAB."
Van Hollen also cautioned prosecutors bringing charges for violations of the disclosure limitations that they might face a significant constitutional challenge. "Put simply, the First Amendment may permit the government to discipline an employee for engaging in speech that the government may not impose criminal sanctions on the employee for making," Van Hollen wrote.