WILL Files Brief in Erpenbach Appeal

Published on: Aug 20, 2013

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WILL, on behalf of the MacIver Institute and Brian Fraley, continued its efforts to require Senator Jon Erpenbach to comply with the Open Records law with respect to e-mails from government employees from government e-mail accounts.  WILL has now filed its brief with the Wisconsin Court of Appeals (District II) asking the Court to order Senator Erpenbach to produce complete copies of such e-mails.

Here’s what the case is about.  MacIver and Fraley 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. (Fraley made the original request when he was a full time employee of the MacIver Institute. While he remains a Senior Fellow with MacIver, he is no longer a full time employee with the think tank.)  Senator Erpenbach produced thousands of e-mails but blacked-out the identity of the senders and their e-mail addresses.  It was clear from what was sent that many of the e-mails were from government employees using their government e-mail addresses.

MacIver and Fraley decided not to press for information regarding the identity of the senders if the e-mails came from private citizens but insisted that Senator Erpenbach produce the full e-mails sent by government employees from government e-mail addresses.  It was apparent from the e-mails that there was an organized effort on behalf of government employees to campaign against Act 10, and MacIver and Fraley believed that the public has a right to know which government employees were involved in the campaign.  In addition, such political communications may violate government policies regarding the use of state provided computers and e-mail accounts. Surely, MacIver and Fraley argued, the public has the right to know whether and who may have violated those policies.

Senator Erpenbach refused, and litigation followed.  The circuit court concluded that Senator Erpenbach had the “discretion” to withhold this information from the public and MacIver and Fraley appealed to the Wisconsin Court of Appeals.  WILL believes that Senator Erpenbach’s refusal to allow the public to look behind the curtain and learn which public employees, in a potentially organized effort, were using public resources to communicate with a public official on an important matter of public policy affecting their public employment  is inconsistent with Wisconsin’s long tradition of transparency in government.  “There is no blanket exemption permitting government employees to use their government e-mail accounts for communications with legislators,” said Rick Esenberg, President and General Counsel of WILL.  “The public has a legitimate interest in knowing whether public employees used state resources for political communications and that is what this litigation is all about.”

Rather than use the experienced attorneys at the state Department of Justice to defend his position, Senator Erpenbach hired a private law firm at state expense.  According to Senator Erpenbach, he has already spent $140,000 of taxpayer money defending his refusal to provide the information to the public. And he has complained about the expense even though he could have been represented by the Department of Justice at no charge. More fundamentally, could have avoided the litigation if only he trusted the public enough to let them know who is doing what with state resources.  Brett Healy, President of the MacIver Institute, said, “I wish that Senator Erpenbach had made the right decision at the beginning and saved the taxpayers from this expense.  I would have hoped that Senator Erpenbach agreed with us that transparency in government is a benefit to the public and that providing the public with more information rather than less is part of his responsibility as an elected official.”

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