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Judge orders Gableman’s office to stop deleting records in election investigation

Judge Frank Remington also scheduled a hearing in the case for Tuesday

Michael Gableman stands at a podium and points around the room as he speaks. Attendees are seated behind him.
Former state Supreme Court Justice Michael Gableman speaks Tuesday, March 1, 2022, at the Wisconsin State Capitol in Madison, Wis. Angela Major/WPR

A Dane County judge has ordered former Supreme Court Justice Michael Gableman to stop deleting records related to a Republican investigation of the 2020 election.

Judge Frank Remington’s order Thursday followed a request by the liberal watchdog group American Oversight. Last month, Remington ruled Gableman must turn over documents sought by American Oversight in an open records dispute.

The latest court filing from the group showed that Gableman’s Office of Special Counsel, or OSC, was deleting certain documents or text messages. American Oversight told Remington this was in violation of Wisconsin’s open records law.

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“Alarmingly, OSC stated that it continues to delete records it deems irrelevant to the election investigation and declared itself exempt from any requirement to retain records,” wrote American Oversight attorney Christa Westerberg.

The motion from American Oversight referenced a memo written by the Legislature’s nonpartisan attorneys to back up its position. In the Oct. 1 memo, Wisconsin Legislative Council deputy director Dan Schmidt stated that Gableman’s office is not exempt from Wisconsin’s requirement to retain open records.

“The Assembly Special Counsel is an officer appointed by the Committee on Assembly Organization to oversee the AOSC and not a member of the Legislature,” Schmidt wrote. “Therefore, the Special Counsel and his or her office are generally subject to the Public Records Retention Law requirements.”

In a letter sent to Westerberg on April 8, Gableman’s attorneys disputed that, stating that the Office of Special Counsel was not obligated to retain all of its records.

“Put simply, the OSC is not contesting its obligation to comply with established public records law, it is plainly not subject to the retention law, notwithstanding the memo produced by the Legislative Council,” Gableman’s lawyers wrote.

In a brief order Thursday, Judge Remington sided with American Oversight.

“In light of petitioner’s motions and in consideration of the memorandum by the Legislative Counsel and the position of the Office of the Special Counsel, IT IS ORDERED that until further order of this court, the Office of Special Counsel is ordered not to delete or destroy any record that is or may be responsive to the petitioner’s original request,” Remington wrote.

Remington scheduled a hearing in the case for Tuesday afternoon.