Judge: Lawmaker properly redacted collective bargaining emails (UPDATE)

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By TODD RICHMOND

Associated Press

MADISON, Wis. (AP) – A Democratic state senator properly redacted identifying information from emails he received during debate over Republican Gov. Scott Walker’s polarizing collective bargaining law before he released them to a conservative think tank, a judge has ruled.

Under the state’s open records law, Sen. Jon Erpenbach, of Middleton, was within his rights to black out names and addresses to protect the senders from retaliation following one of the most contentious issues in Wisconsin’s history, Grant County Circuit Judge Robert P. VanDeHey said in a decision Friday.

“The Senator’s concern that his constituents might face retaliation must be considered in light of the nuclear environment that existed when he made the decision to redact email addresses,” VanDeHey wrote.

The John K. MacIver Institute for Public Policy asked Erpenbach’s office in March 2011 for emails he received during the fight over the law, which stripped most public workers of nearly all their union rights. Tens of thousands of people converged on the state Capitol to demonstrate against the plan non-stop for three weeks. Erpenbach was one of 14 Democratic senators who fled to Illinois in an attempt to prevent a vote on the measure.

The institute made the request about a week and a half after Walker signed the proposal into law in an effort to determine if government workers improperly sent the senator messages about the law from government computers on government time.

According to court records, Erpenbach turned over 2,600 emails but redacted information that would have identified the senders. The institute amended its request to ask for only names and addresses for emails sent from government-owned computers.

Erpenbach refused. Institute attorneys sued, arguing they were entitled to know whether public workers used government computers on the public’s time for political activity. Erpenbach countered his constituents’ right to be free from harassment and reprisal outweighed the public’s right to know the senders’ identities.

VanDeHey privately examined nearly 2,000 emails Erpenbach received from government computers. He wrote that most of them expressed support for Erpenbach’s stance against the union law. But the judge noted that case law allows the occasional use of public resources for personal matters, and that he doesn’t believe any of the emails would warrant discipline or prosecution.

Case law also allows records custodians to decide whether exceptional circumstances negate the state’s open record law’s presumption that government documents belong to the public, the judge wrote. Erpenbach properly exercised his discretion when he decided that the bitter debate over the union law created exceptional circumstances, he concluded.

Institute attorney Richard Esenberg said Monday that he disagreed with the ruling. He said Erpenbach failed to show that anyone might have been harassed. He said institute officials haven’t decided whether to appeal, but he believes they would win.

“The fact of the matter is a document created or maintained by an agency is a public record,” Esenberg said by phone Monday. “Generally speaking, the courts require a far more substantial showing for the potential of retaliation than was ever shown here.”

Erpenbach hired the Whyte Hirschboeck Dudek law firm to defend him rather than turn to Republican Attorney General J.B. Van Hollen, whose state Justice Department typically defends the state in open records cases.

Erpenbach’s office said the law firm has racked up $140,000 in bills that taxpayers will have to cover. Erpenbach issued a statement Monday blaming the costs on the institute.

“This case,” he said, “was about the Republican front group the MacIver Institute and their conservative financiers on a personal witch hunt against citizens who simply exercised their constitutional right to petition elected officials.”

Esenberg released his own statement insisting that the institute has no connection to any political party and Erpenbach should explain why he picked an expensive private law firm to handle the case, rather than the state Justice Department.

Erpenbach said by phone Monday that DOJ officials told him they didn’t think he had a case. A DOJ spokeswoman, Dana Brueck, declined to comment Monday.