WILL and MacIver Win Erpenbach Appeal

 In Case Updates, MacIver v. Erpenbach

The Wisconsin Court of Appeals (District II) sided with transparent government today in an open records case brought by the Wisconsin Institute for Law & Liberty (“WILL) on behalf of the MacIver Institute and Brian Fraley against State Senator Jon Erpenbach (D-Middleton).  The decision reverses a lower court ruling from Grant County and requires the Senator to turn over unredacted copies of emails he received from other government employees and officials regarding the passage of Act 10.

MacIver made an open records request seeking all correspondence “regarding the subject of changes to Wisconsin’s collective bargaining laws for public employees” received or sent between January 1, 2011 and March 23, 2011.  Senator Erpenbach produced thousands of emails but blacked-out the identity of the senders and their email addresses.  It was nevertheless clear from what was sent that many of the emails were from government employees using their government email addresses – potentially on government time and government computers.  When MacIver asked for versions of emails from government email addresses without those email addresses redacted, the Senator refused and litigation ensued.

Today, the Court of Appeals ruled that Senator Erpenbach’s refusal violated the Open Records Law.  It first rejected his contention that as a State Senator, he could withhold what he called “constituent communications” from records requests with impunity: “Erpenbach has identified no difference in how our laws treat policy-related correspondence to legislators and how it treats similar correspondence to any other elected state officials.”  Rick Esenberg, President and General Counsel of WILL, explained that “the court made clear that the legislature must live by the open records just like every other unit of state and local government.”

Addressing MacIver’s particular request, the court concluded that public policy weighed heavily in favor of releasing the emails without redacting the identities of their senders.  The court repeatedly expressed its agreement with the arguments we made, particularly that the public has a strong interest in learning who is attempting to influence legislation:

Public awareness of “who” is attempting to influence public policy is essential for effective oversight of our government. For example, if a person or group of persons who has played a significant role in an elected official’s election—by way of campaign contributions or other support—contacts a lawmaker in favor of or opposed to proposed legislation, knowledge of that information is in the public interest; perhaps even more so if the person or group also stands to benefit from or is at risk of being harmed by the legislation.  Disclosure of information identifying the sender may assist in revealing such a connection.

. . .

Disclosure of the redacted information sought here can provide the public with knowledge and insight regarding who was attempting, either individually or in an organized fashion, to influence the public policy changes under consideration and thereby assist the public in performing its important government oversight function. . . . Whether government employees, another public official, a lobbyist, the CEO or employees of a corporation, the president or members of a union, or other individuals supporting or opposing a particular interest, awareness of who is attempting to influence public policy is of significant interest to the public.

It is also of public interest to know from “where” the sender is attempting to influence public policy.  Whether a communication is sent to a public official from a source that appears associated with a particular unit of government (such as Milwaukee County or Waukesha School District), a private entity (such as Northwestern Mutual Life or Marquette University), or a nonprofit organization (such as American Red Cross or Clean Wisconsin, Inc.), or from individuals who may be associated with a specific interest or particular area of the state, from “where” a communication is sent further assists the public in understanding who is attempting to influence public policy and why.

“Today is a win for transparency in government and the taxpayers of Wisconsin,” said Brett Healy, President of the MacIver Institute.  “The Court of Appeals has agreed with the MacIver Institute that Senator Erpenbach cannot carve out a special exemption to the open records law for whomever he chooses or try to hide public information when he works for Wisconsin taxpayers. Government employees and their unions should not be given a cloak of anonymity to hide their attempts to influence the legislative process.  Today’s decision requires them to play by the same rules as everyone else.”

“We couldn’t have asked for a stronger opinion from the court,” said Tom Kamenick, Associate Counsel and open government expert at WILL.  “This is a major step forward for open and honest government in Wisconsin.”

The Senator has the right to ask the Wisconsin Supreme Court to review the case.

A copy of the Court of Appeals decision is here.

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