WI Court Compels Disclosure of Legislative E-mails

Wisconsin case law summary by Attorney Richard Clem: legislative records, Wis Stat 19.31.

John K MacIver Institute for Public Policy, Inc., v. Jon Erpenbach. MN WI legislative records, Wis Stat 19.31.

The MacIver Institute for Public Policy brought this action against State Senator Jon Erpenbach to disclose e-mails sent to him in connection with 2011 collective bargaining legislation. He provided copies, but redacted the names and e-mail addresses of the senders. The Institute eventually narrowed the request to obtain only the names and e-mail addresses of e-mails sent from state and local government e-mail accounts. The Circuit Court of Grant County, Judge Robert P. Van de Hey, denied the request and the Institute appealed to the Wisconsin Court of Appeals.

The Court of Appeals first determined that the case was justiciable. It then applied the legislative records laws, target = "_blank"> Wisconsin Statutes 19.31-19.37.

Even though the request in this case applied only to government e-mail accounts, the court's opinion does not appear to be limited to such requests. The court first noted that this was not an internal legislative matter. It held that the balance test required by the statute must be performed by the court, without any special deference to the decision of the records' custodian. The court noted that the e-mails were clearly public records, and then looked at whether the redacted information was purely personal.

The court held that the redacted information--the identities of the senders and where they were being sent from--was not purely personal. The court noted that this information can provide the public with insight as to who was attempting to influence policy changes.

The court then looked at whether the disclosure should be blocked because of a chilling effect on future citizen communications. In this regard, the court cited Doe v. Reed, 561 U.S. 186 (2010), in which the U.S. Supreme Court allowed disclosure of the names of voters signing ballot initiative petitions. The court held that this argument did not overcome the statute's strong presumption that the e-mails are public records.

The court's opinion was authored by Judge Gundrum, with whom Judge Reilly concurred. Chief Judge Brown concurred, but wrote a separate opinion expressing sympathy for the legislator's position and noting that the outcome of the case gave pause.

No. 2013AP1187 (Wis. Ct. App. April 9, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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