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Home / Legal News / Van Hollen says his office must defend lawmaker in records suit (UPDATE)

Van Hollen says his office must defend lawmaker in records suit (UPDATE)

Wisconsin Attorney General J.B. Van Hollen

Wisconsin Attorney General J.B. Van Hollen

Associated Press

MADISON, Wis. (AP) — Wisconsin’s open records laws apply to legislators but they can claim immunity from lawsuits seeking their documents, Attorney General J.B. Van Hollen said Tuesday.

Van Hollen, a Republican, has been criticized after the state Justice Department argued in court filings last week that the Wisconsin Constitution grants Sen. Leah Vukmir immunity from a Center for Media and Democracy lawsuit seeking records from an American Legislative Exchange Conference she attended.

The lawsuit noted Vukmir, R-Wauwatosa, has turned over nine pages at CMD’s request but alleges she must have more in her possession.

Van Hollen’s stance stunned open government advocates. The attorney general released a statement Tuesday saying legislators have a legal duty to respond to open record requests as quickly as possible. He also said Vukmir complied with CMD’s request.

But the Wisconsin Constitution says lawmakers aren’t subject to civil lawsuits while the Legislature is in session and Vukmir has invoked that privilege, the attorney general said.

“Whether the framers’ decision to provide this unique protection to legislators was a proper balancing of interests is a debatable question,” Van Hollen said. “What is not debatable is my responsibility to defend its application when it is invoked. An attorney general simply cannot pick and choose parts of the Constitution to disregard …”

DOJ attorneys filed a motion last week asking a judge to quash CMD’s summons based on the constitution.

CMD attorneys maintain DOJ’s position guts the state’s open records laws. No one could ever sue a lawmaker since the Legislature is always in session, they argue. Recent legislative sessions have run continuously from the day lawmakers are sworn in until the next class takes the oath two years later, triggering the start of the next session.

CMD attorney Brendan Fischer said Van Hollen is broadly expanding the constitutional immunity privilege. Fischer argued the privilege is meant to apply only during floor periods, which typically last for a matter of days, not the entire session.

“This statement that all he’s doing is upholding the constitution, that he has no role in this, is incorrect. It’s misleading,” Fischer said in an interview.

Bill Lueders, president of the Wisconsin Freedom of Information Council, wrote in an email to The Associated Press that the council disagrees that the attorney general had no choice but to defend Sen. Vukmir’s “radical position.”

He reiterated the council’s stance that DOJ’s interpretation would allow lawmakers to avoid any lawsuits, including actions seeking divorce or damages for injuries they might cause.

“We feel (Vukmir) should rethink her stance and mount a substantive defense to the charge that she has violated what Attorney General Van Hollen acknowledges is a bedrock principle of open government in Wisconsin,” Lueders wrote.

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