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Wisconsin Appeals Court Upholds Public’s Right To Emails Under Open Records Law

Decision Involves Lawmaker Correspondence On Water, Land Issues

Gavel on a law desk
Joe Gratz (CC)

The Wisconsin Appeals Court has affirmed a lower-court decision regarding the state’s open records law and whether requested information has to be given electronically when that’s the format asked for.

Wednesday’s decision upheld a Dane County Circuit Court ruling requiring Rep. Scott Krug, R-Nekoosa, to turn over emails requested by Bill Lueders, editor of The Progressive.

“Notably, Krug did not refuse to provide the e-mails to Lueders in electronic form on the ground that they were protected from disclosure on some legal basis. No such reason was suggested. Rather, Krug effectively indicated that the paper printouts were ‘good enough’ to satisfy Lueders’ second, enhanced open records request. They were not,” Appeals Court Judge Mark Gundrum wrote in the decision, which was unanimous.

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In 2016, Lueders asked Krug for all citizen correspondence related to four bills pertaining to groundwater, the stewardship fund, water rights and state parks. Paper printouts of emails were provided. Lueders subsequently asked for the emails in electronic form and sued when he didn’t get them.

Dane County Judge Rhonda Lanford decided against Krug and he appealed unsuccessfully.

A paper record is not the same as an electronic record which contains additional information like when the email was sent and by whom, said Lueders, who is president of the Wisconsin Freedom of Information Council.

“Our (state’s) records law which was written in the early 80s does make specific reference to electronic records but I don’t think it anticipated the extent to which electronic records would be the norm. That’s certainly the world we live in today. And this establishes that citizens are entitled to records in that primal form,” Lueders said.

Wisconsin Institute for Law and Liberty, a conservative law firm, filed a friend-of-the-court brief when the case was appealed and the group said it was pleased with the court’s decision Wednesday.

“Public officials must stop playing games with record requests. Copying an electronic file onto a flash drive or sending it via email is cheap and easy, and there is no reason to waste time and taxpayer resources printing out emails one at a time. We’re pleased the court of appeals agrees and we hope Rep. Krug accepts the decision and doesn’t continue fighting a hopeless battle,” Tom Kamenick, deputy counsel at WILL, said in a statement.

Last year, WILL announced a settlement with another lawmaker over a similar issue. The group sued Rep. Jonathan Brostoff, D-Milwaukee, over not releasing electronic records regarding occupational licensing reform. The case was later settled.