A Madison-based conservative group obtained copies of thousands of emails sent to a state senator on one of the most controversial political issues of this decade in Wisconsin.
The emails to Sen. Jon Erpenbach (D–Middleton) from government employees over the 2011 Act 10 public employee comprehensive bargaining reforms prompted a lawsuit in Grant County Circuit Court because Erpenbach refused to identify the senders of the emails. Erpenbach won a Grant County Circuit Court decision that allowed him to not identify the senders, but the state District II Court of Appeals reversed the decision in April.
The MacIver Institute for Public Policy, which filed suit against Erpenbach, said Monday it plans to go over the emails to find out how many were sent by public employees using “public resources.”
The MacIver Institute and the Wisconsin Institute for Law and Liberty filed an open records request with Erpenbach for correspondence “regarding the subject of changes to Wisconsin’s collective bargaining laws for public employees” between Jan. 1 and March 23, 2011, according to a WILL news release.
Erpenbach provided the emails but blacked out their senders and email addresses, prompting the lawsuit. Grant County Circuit Judge Robert VanDeHey ruled in April 2013 that Erpenbach could choose to withhold senders’ email addresses.
The state District II Court of Appeals April 9 overturned VanDeHey’s decision, ruling that Erpenbach violated the state Open Records Law.
“Transparency and oversight are essential to honest, ethical governance,” wrote Judge Mark Gundrum. “Erpenbach has not met his burden of establishing that the public interest in nondisclosure of the redacted information outweighs the significant public interest in disclosure. Accordingly, he has not overcome the strong presumption of complete openness with regard to the emails.”
Judge Richard Brown wrote in a concurring opinion that even though “In a divisive political climate, the bright light of publicity brings with it the fear of reprisals, blacklisting, harassment, even violence,” “the courts’ proper role in these cases is to ensure that whatever the rule is, it is going to be applied in an apolitical and even-handed manner, applying the same to everyone, across the board, no matter which legislator is holding the records.”
“Application of the public records law does not turn on whom the public record is from or who owned the computer from which the public record was transmitted,” wrote Judge Paul Reilly in a concurring opinion. “Application of the public records law is the same whether the record is from George Soros, David Koch, or John Q. Public. The ownership of the computer upon which the communication was transmitted is not relevant under the law. The public has a right under the law to know who is attempting to influence its public officials. … If legislators do not like the law they created they can repeal it — but until then they must abide by it.”
“I am very pleased the court agreed with MacIver that we cannot have politicians deciding arbitrarily what the Open Records law applies to and what public documents should be shielded from the public’s view,” said MacIver Institute President Brett Healy. “It is disappointing that Sen. Erpenbach wasted over $200,000 of taxpayers’ money in his attempt to keep the public in the dark, but hopefully now MacIver can shed some light on what exactly happened.”
WILL president Rick Esenberg said in April that “the court made clear that the legislature must live by the open records just like every other unit of state and local government.”
Erpenbach said in April he was considering an appeal to the state Supreme Court.
“The only true job of an elected official is to defend the Constitutional Rights of the people they were elected to represent,” he said in an April news release. “The Senate rules clearly say I can protect the privacy of the citizens of this state that contact my office. The Wisconsin Open Records law also states I can protect the rights of citizens over special interest groups. I will never regret standing up for the Constitutional rights of people to contact their elected leaders. If we do not preserve the voice of individual people then we give all of the power in this state to those that can buy the best lobbyist.”
Act 10 took away most government employees’ collective bargaining rights, particularly bargaining over employee contributions to benefits and pensions. In the wake of Act 10 many public employee unions decertified, except for police unions, which were exempted from Act 10.
Act 10 also prompted the recall of Gov. Scott Walker and several Senate Republicans who voted for Act 10. Sen. Dale Schultz (R–Richland Center) voted against Act 10, and was the subject of a recall effort that failed for not voting for Act 10.
Walker won his recall election in June 2012. Democrats won control of the state Senate until the November 2012 elections.