FOIA “request” in Wisconsin could be violation of whistleblower protection law


Wisconsinite Jean Detjen sent me a note correcting my misinformation:  Wisconsin does indeed have a whistleblower protection act.  The law protects Wisconsin state employees, against retaliation for disclosing information about wrongdoing.

William Cronon, Frederick Jackson Turner Professor of History, University of Wisconsin

William Cronon, Frederick Jackson Turner Professor of History, University of Wisconsin - University of Wisconsin photo

My reading suggests that, since professors are not specifically exempted, Prof. Cronon, at the University of Wisconsin, is specifically protected.

If the University of Wisconsin gives that answer to the Wisconsin Republican Party, however, the Party will argue that it is not a government official prevented from retaliating against a government employee.  That would be ample reason for the state to deny the FOIA request of the Party flatly and completely.

There is another, potentially more pernicious angle here:  The Republican Party in Wisconsin is, in this case, an agent of the Republicans in the state legislature, those whose tails are on the line for violating Wisconsin law, and as Prof. Cronon outlines it, Wisconsin tradition and historical norms.  It’s likely that the Party is acting at the direction of legislators.

In short, it’s kind of an organized crime action.  I think that the federal Racketeer Influenced and Corrupt Organization Act (RICO) would cover this sort of action — any retaliation for hire, or by an agent, which creates a pattern or practice of organized crime activities.  Worse for the Wisconsin Republicans, if there were an ambitious U.S. attorney out there somewhere, there is no scienter requirement on RICO actions — that is, there need not be a clear formation of criminal intent.  The mere actions of an organized crime group, even with no intent to break the law, can be a RICO violation.

Even worse for the Republicans, RICO is available for anyone to use.  Were I Prof. Cronon, and were the Republicans to press their FOIA request to court, I’d counterclaim in federal court with the RICO statute.

That’s a nasty escalation.  But in these days, in this case, where a state party organization has gone to the employer of a university professor to get his job after he merely reported history, I wouldn’t take chances that the Republicans would later play fair or nice.

Every step against Cronon, every press release, every statement from a legislator or party apparatchik, provides more evidence of the coordinated effort, and establishes further the “pattern and practice” of organized crime activity.

Maybe cool heads will soon prevail, maybe patriotism and love of the First Amendment will break out among Wisconsin Republicans, and they will retract their demand that Prof. Cronon deliver them all of his e-mails as a professor at  the University of Wisconsin.

Maybe badgers will fly.

“Badger” is supposed to be the mascot of Wisconsin’s top-flight university, not a tool of partisan politics.

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10 Responses to FOIA “request” in Wisconsin could be violation of whistleblower protection law

  1. [...] ‘FOIA “request” in Wisconsin could be violation of whistleblower protection law’, Millard Fillmore’s Bathtub, 27 March. [...]

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  2. [...] ‘FOIA “request” in Wisconsin could be violation of whistleblower protection law’, Millard Fillmore’s Bathtub, 27 March. [...]

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  3. David Gillaspie says:

    Maybe Professor Cronon has some cowboy in him and he’s just giving the cows enough rope before he snaps back?

    You’ve got to admire a guy who whips out McCarthy in the home state.

    David Gillaspie

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  4. I’m not even saying that much, I was just asking for clarification based on what I read. I’m an academic myself and a Cronon supporter (and fan).

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  5. Ed Darrell says:

    Nick, I don’t get the idea that Carl is favoring the fishing expedition part of the witch hunt — only that he thinks it’s a stretch to paint the harassment of Prof. Cronon as actionable under employee protection laws.

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  6. Nick K says:

    Carl asks:

    It’s unclear to me how the whistleblower protection act would apply in this case, given that Cronon more or less explicitly states (and goes to great lengths to do so) in the initial ALEC post that none of this is “wrong-doing” per se, just flying under the radars of most.

    So….you want elected officials to be able to destroy other people’s lives when those people question those elected officials?

    Would you like to think about that for a few minutes?

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  7. Ed Darrell says:

    Not according to the law, as I read it. Under the law, employees are to be protected from retaliation.

    It’s ironic, I know — the potential of the piece to expose criminal wrongdoing is not apparent without the retaliation, at least to most of us.

    But it doesn’t matter. Employees may speak the truth about their organizations without retaliation. In this case, I think Prof. Cronon is more than doubly protected. His study of history and writing about it is exactly the kind of work the state of Wisconsin hired him to do. (There may also be a problem with interfering with a state employee in the performance of his duties . . .). His work is clearly protected as free speech and free press.

    Plus, the filing of an FOIA request, to the attorney for the university, suggests to the attorney there may be criminal activity to be investigated, which is what the Republican Party hopes for, I suspect. If they wanted to know Cronon’s biases, they could check the library, check his vita, and call him on the phone. It’s not a request for information, really, so much as a shot across the bow that they hope somehow lands amidships below the waterline. If I were the attorney, I’d send a letter back asking them to make clear that they are not filing a false report, so that they’d state on the record they’re not suggesting criminal activity where there is none — filing a false report is also generally a crime.

    But as a former FOIA chair for the Society of Professional Journalists for a states, as a former FOIA officer for a federal agency, I take some delight in their stupid use of FOIA where a letter of request frequently would work better. It shows lack of thought, and malice. It was not approved of, but neither was it prevented — at one federal agency I would regularly pick up the phone and ask the requester if they really wanted to wait the full amount of time we were required to process an FOIA request, or would they take the information they had asked for unofficially, since we were in the business of putting it into press releases and publishing it in books, and we could give it to them right away without the FOIA request. You can learn quickly who is making the request to harass the agency or a person, and who just misunderstands how government agencies work.

    As a former reporter, I must say that most of the time FOIA requests are pointless. A good reporter can usually get the information, faster, on the record, for free. That is not to denigrate FOIA requests from investigative reporters who, in my experience, don’t use the act frivolously, but generally as a last resort for information really tough to get out.

    For propaganda purposes, there is a political smear when I as a journalist write “In information obtained through a Freedom of Information Act request” to introduce a table or chart, a boost in raciness that is not present if I say “in information the agency routinely released.” What could Prof. Cronon know, what information could they want, that he wouldn’t divulge to them in a telephone conversation? Cronon is well known, a Pulitzer Prize nominee. He’s president-elect of one of the major history organizations. You can see him interviewed in his specialty area in Ken Burns’ astonishing series of films, “The National Parks.” (Maybe the Republicans are offended at the National Parks — one of the policies of ALEC is to get rid of public lands.)

    This is an attempt to smear Cronon on the part of the Republicans. I checked, and Joe McCarthy is still in his grave in Appleton, Wisconsin — but McCarthyism is reborn in the Wisconsin Republican Party.

    It’s a game. In this case it’s a game of chicken, played by chickens. Call the bluff, and make it clear that our current economic crisis isn’t the place for games.

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  8. Haha, ok, I’m almost there…but doesn’t the act need to be deemed whistleblowing before it can be decided whether or not the subsequent act constitutes relatiation against a whistleblower?

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  9. Ed Darrell says:

    How is it whistleblowing? The act doesn’t protect whistleblowing, per se, but instead protects government employees from retaliation.

    It’s the retaliation from the Republicans which puts them afoul of the law. Cronon’s judgment doesn’t matter — the actions of the retaliators do.

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  10. Carl says:

    It’s unclear to me how the whistleblower protection act would apply in this case, given that Cronon more or less explicitly states (and goes to great lengths to do so) in the initial ALEC post that none of this is “wrong-doing” per se, just flying under the radars of most.

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