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Judge says not to delete Wisconsin election probe records

May 4, 2022 GMT

MADISON, Wis. (AP) — For the second time in as many weeks, a judge on Wednesday ordered that records related to the Republican-ordered investigation funded by taxpayers into the 2020 election in Wisconsin not be deleted, saying she was “amazed” such an order was necessary.

Republican Assembly Speaker Robin Vos hired former Wisconsin Supreme Court Justice Michael Gableman to investigate the election won by President Joe Biden. Vos last month extended Gableman’s contract beyond its April 30 end-date, citing ongoing legal challenges to subpoenas he has issued. Vos and Gableman are also defendants in three open records lawsuits filed by the liberal watchdog group American Oversight.

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Dane County Circuit Judge Frank Remington on April 21 ordered Gableman “not to delete or destroy any record that is or may be responsive” to the group’s open records requests. Remington made the order after Gableman’s attorney told American Oversight that it “routinely deletes documents and text messages that are not of use to the investigation.”

On Wednesday, another judge issued a similar order directed at Vos not to destroy records collected during a three-month period requested by American Oversight, saying he has control over Gableman since he contracted with him to do the work.

“I don’t want any records destroyed,” Dane County Circuit Judge Valeria Bailey-Rihn said. “I’m frankly amazed that I have to say, `Don’t destroy records that are subject to an open records request,′ order that to occur. All of us know what the law is.”

Vos’ attorney Ronald Stadler argued that Gableman knows what the open records law requires, and has been ordered by Remington not to destroy records, so it does nothing to order Vos to tell him not to delete records. But the judge said Vos, as the contractor, has responsibility for Gableman and his actions and could be found in contempt if Gableman deleted records.

“I just can’t believe the explanation is ‘We can’t control our contractors,’” Bailey-Rihn said. “That doesn’t seem to be satisfactory to the court. ... They have to control their contractors.”

The nonpartisan Legislative Council, attorneys who advise the Legislature, said in October that deleting such records, even by a state contractor like Gableman, is a violation of Wisconsin law.

Gableman’s attorney, James Bopp, has argued in court filings that the record retention law does not pertain to contractors.

American Oversight attorney Christa Westerberg argued Wednesday that there is evidence that Gableman deleted records that were in his control for the period covered by the open records request between June and Aug. 30 last year. She said American Oversight has received just 27 pages of records from Gableman.

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In response to another lawsuit, Vos has produced roughly 20,000 deleted records related to the investigation. The case on Wednesday pertained to records held by Gableman.

“These contractors are run amok with respect to the records of the investigation,” Westerberg said. She said that Vos and Assembly Clerk Ted Blazel were “exercising no control over their contractor with respect to these records.”

Stadler argued that Vos has produced all of the records he has.

“Where are the deleted records?” he said. “Where is their proof of deleted records?”