Court Sides With Erpenbach In Open Records Case

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MTT News Desk's picture
Matt Geiger

The Grant County Circuit Court has issued a decision in the John K. MacIver Institute for Public Policy’s case against Sen. Jon Erpenbach (D-Middleton).

The court sided with the senator, declining to compel him to make public unredacted versions of emails he received during the political battle over Act 10.

The MacIver Institute sought the information, claiming public employees using government computers to contact Erpenbach on the legislation may have violated the law preventing the use of public resources for a political purpose. Erpenbach had redacted names and email addresses before turning them over.

Judge Robert P. VanDeHey wrote in a decision, dated Friday of last week, that public employees in the future “would be well advised to contact their political leaders using their personal computers and while not at work.” However, he found MacIver’s suggestion the practice was wrongful conduct was questionable and wrote he was required by law to defer to Erpenbach’s decision to withhold the information even if he “may not have arrived at the same conclusion” on redacting personal details.

“Even assuming the worst case scenario, the e-mails indicate NCAA office pool level conduct and certainly nothing approaching caucus scandal level conduct,” VanDeHey wrote.

Erpenbach hired an outside attorney to represent him after raising concerns that the Department of Justice under GOP Attorney General J.B. Van Hollen would not provide adequate representation. He said in a statement that it was MacIver that cost taxpayers nearly $140,000. 

“This case was about the Republican front group the MacIver Institute and their conservative financiers on a personal witch hunt against citizens who simply exercised their constitutional right to petition elected officials,” he said.

The conservative Wisconsin Institute for Law and Liberty (WILL), which filed the suit with MacIver, issued a statement expressing outrage over the decision.

“[W]e respectfully disagree that the public does not have a right to know which of its employees used taxpayer provided resources to engage in political activity,” the WILL statement said. “When employees, often in violation of specific workplace policies, use public computers to communicate with public officials on matters of public policy, the public is entitled to know – without regard to whether a politician or court believes that the conduct is ‘important enough’ to be subject to disclosure.”

WILL said this was only “round one” of the fight to make the records public. The organization also criticized Erpenbach for his use of a private lawyer for the case. “[He] should explain to the taxpayers why he used an expensive private law firm and did not rely on representation from lawyers at the Department of Justice, which would not have cost the taxpayers additional funds,” WILL wrote.



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