Court: Prehn unlawfully withheld public text messages

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The Wisconsin Court of Appeals District 1 ruled this week that former Natural Resources Board Chair Frederick Prehn unlawfully withheld private records in a lawsuit filed by Midwest Environmental Advocates (MEA).

The case centered on whether Prehn withheld text messages he exchanged with former Gov. Scott Walker about his plan to remain in office past the expiration of his term.

Although Prehn released the text messages in 2022 as part of agreement negotiated by MEA’s attorneys, he continued to challenge the scope of the public records law in the appellate courts.

The appeals court decision addressed whether text messages on private cell phones qualify as public records and whether officials who withhold public records but then turn them over during litigation can escape judgments against them and orders to pay for attorney fees.

The appeals court rejected the idea that public officials can move discussions about government businesses to text messaging apps on private cell phones and then claim the records are personal conversations and not subject to public scrutiny and transparency.

“The circuit court correctly denied Prehn’s motion to dismiss because the requested communications are ‘records,’” the appeals court wrote.  “The communications sought by MEA were about whether a power inherent to the office would be exercised, and the communications were directly connected to the functions of government.”

The court also reversed a lower court’s decision that said because Prehn released the records while the legal proceedings were still ongoing that MEA was not entitled to legal fees.

The appellate court found that the lower court’s ruling was based on misinterpretations of the Wisconsin Supreme Court’s 2022 ruling in Friends of Frame Park vs. the City of Waukesha. 

“Prehn arbitrarily withheld public records for well over a year,” said Christa Westerberg, an attorney at Pines Bach, who co-litigated the case with MEA. “He kept these records from the public until MEA filed suit and a court ordered their disclosure. If officials who brazenly violate the public records law — and only comply after being sued — can avoid judgments against them, there would be no real incentive for anyone to follow the law in the first place.”