Fees building in DA’s open records suit

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Failure to immediately comply with an open records request could cost the Dane County District Attorney’s office thousands of dollars in legal fees.

A Michigan education group is suing district attorney Ismael Ozanne to recoup upward of $5,000 in legal costs it incurred while pursuing an open records request tied to Wisconsin’s new collective bargaining law.

At a court hearing on Thursday, Ozanne’s office complied with the open records request, but Judge Richard Niess did not rule on whether sanctions are warranted.

“He did not find a violation at this point.” said attorney Paul Bucher, who is representing Education Action Group Foundation Inc., Muskegon, Mich. “But the suit is not dead and we’ll move forward with the next step in determining what sanctions might be.”

So far, Bucher said, his client has spent between $3,000 and $5,000 on legal fees.

“We’re not looking to make money off of this,” he said. “But I don’t want my client spending that kind of money to get records they should have already gotten.”

The nonprofit group twice requested all Ozanne’s county emails pertaining to Gov. Scott Walker or the budget repair bill, said Steve Gunn, the nonprofit group’s communications director. He said EAG wanted to find out how much county time Ozanne spent on the lawsuit to prevent the publication of the collective bargaining law.

“In our opinion,” Gunn said, “he should have been doing what he is paid to do: prosecuting criminals in Dane County.”

Although Ozanne provided the requested records, they arrived “late in the game,” Gunn said, after EAG had hired Bucher as its attorney early in the process.

Ozanne said there had been a “miscommunication” in relaying to the group that his office was getting the requested materials. He said he thought a written acknowledgement of the request and of the intention to fulfill it had gone out to Bucher.

But when it was discovered that was not the case, Ozanne said, he tried to rectify that with a phone call to Bucher. The phone call was made the afternoon of June 10, when Bucher filed the lawsuit against Ozanne, the DA said.

A former district attorney, Bucher sympathized to a point with Ozanne, but said “any elected official cannot simply ignore an open records request.”

EAG filed its initial written request for Ozanne’s emails April 7, said Kyle Olson, the group’s founder and CEO, and gave the DA’s office 30 days to respond. When the group did not hear from Ozanne, it sent another letter May 10, giving the DA 10 more days before the group considered legal action.

Ozanne filed a lawsuit in March to block publication of the collective bargaining bill shortly after Walker signed it into law. The Democratic DA alleged Republican lawmakers didn’t give proper public notice in February before a committee met on the controversial plan that bars most public employees from collective bargaining.

Ozanne said his office went “above and beyond” to juggle its civil and criminal caseload and the collective bargaining case, which the DA was “statutorily authorized” to look into as an open meetings concern.

“I don’t think you can say we dropped the ball in other criminal or civil prosecutions,” he said before Thursday’s hearing. “We haven’t been derelict in any of our duties.”

Ozanne said his office also did the best it could to fulfill the request.

“We are, as every DA office in state, understaffed, and don’t have the ability to just have people cull through all the email accounts in the office that may be affected. That takes time,” Ozanne said. “We do as best as we can with all the things we have on our plate, and we’ve tried to satisfy any and all open records requests.”

Bucher said Niess did not set a timetable to return to court and said Ozanne had the right to retain independent counsel.

“Hopefully, we can resolve this,” Bucher said. “If not, we will go back to court and brief the legal issue and discuss attorney’s fees and costs.”

Ozanne could not immediately be reached for comment after Thursday’s hearing.