WILL Files Open Records Lawsuit Against Senator Erpenbach

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In 2011, the John K. MacIver Institute for Public Policy made an open records request to State Senator Jon Erpenbach 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.  The Senator produced those records, but redacted the identity of all correspondents, claiming – without proof – that the release of the information might result in the harassment of citizens or the “chilling” of communications between legislators and their constituents.

MacIver offered to compromise by narrowing its request to seek the identity of only those correspondents using government email accounts.  Depending on their content, such communications may, at the very least, be contrary to government policy regarding the use of state provided computers and email accounts. Surely, MacIver argued, the public has the right to know whether those policies were violated and who may have violated them.

Senator Erpenbach rejected that compromise, leading to today’s filing. “There is no blanket exemption for such communications in the Open Records Law,” said Rick Esenberg, President and General Counsel of the Wisconsin Institute for Law & Liberty. “While it is certainly appropriate to balance the risks of such harassment or retaliation against the public interest in disclosure, Senator Erpenbach offered no reason to believe that there would be any negative consequences for those who communicated with him and the public interest in knowing whether public employees used state resources for political communications is certainly substantial,” Esenberg said.

“Taxpayers have a right to know the extent to which public resources have been used to lobby for or against any specific piece of legislation,” said Brett Healy, President of MacIver. “Legislators should not conceal the identity of public employees who may have contacted them using public resources and possibly during work hours.”


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