MACIVER V. ERPENBACH

Case Name: John K. MacIver Institute for Public Policy, Inc. v. Erpenbach

Type of Case: Open Records

Court: Grant County Circuit Court; District II Court of Appeals

Case Number: 2012-CV-63 (Circuit Court); 2013-AP-1187 (Court of Appeals)

Filed On: February 9, 2012

Current Status: Court of Appeals ruling in favor of MacIver

The MacIver Institute sent an open record request in 2011 to State Senator Jon Erpenbach requesting all correspondence sent or received regarding “the subject of changes to Wisconsin’s collective bargaining law for public employees.”  The Senator provided numerous emails, but redacted significant information, such as names and email addresses.

Because the MacIver Institute wanted to determine whether any laws prohibiting use of government resources for political purposes had been violated, they requested that Erpenbach provide names and email addresses from those emails which had been sent from government email accounts.  Erpenbach refused.

This lawsuit alleges that Erpenbach’s refusal violates open records laws.  The Wisconsin Supreme Court has made clear that the public interest in discovering whether government workers are violating laws or computer-use policies outweighs the embarrassment a government worker might feel if their indiscretion becomes public.  Erpenbach claims, among other defenses, that Senate rules governing procedures in the Senate permit him to keep communications confidential.

On February 2, 2013, Judge VanDeHey ordered Erpenbach to turn over unredacted versions of the emails to the court in order to determine whether any of the emails violated laws or policies prohibiting government employees from using government resources for political purposes.  In doing so, the judge rejected Erpenbach’s arguments that (1) the government email addresses were not “records” under the open records law, and (2) his status as a senator gave him immunity from the open records law.

On April 12, 2013, the judge concluded that Erpenbach lawfully redacted the email addresses of the government workers.  According to his opinion, “When the Senator balanced the minor or nonexistent misconduct shown by the e-mails with the passion exhibited by individuals on both sides of the issue, he was within his discretion to conclude that the exceptional times made for an ‘exceptional case,’ and release only the contents of the e-mails.”

On May 20, 2013, we appealed the case to the District II Court of Appeals.  The Court of Appeals reversed Judge VanDeHey, concluding that Senator Erpenbach had unlawfully redacted the email addresses.  The opinion is strongly worded, and can be read to support requiring custodians to disclose the email addresses of all people who communicate with elected representatives on government issues, not just the addresses of government employees.

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