April 11, 2014 – A Wisconsin State Senator must disclose certain unredacted emails received from the public, a state appeals court has ruled, despite his claim that disclosure could “chill” correspondence from constituents.

Through a writ of mandamus, the John K. MacIver Institute for Public Policy sought to compel disclosure of unredacted copies of emails sent to Sen. Jon Erpenbach (D-Middleton). The circuit court denied the request. The emails apparently related to the collective bargaining law that passed in 2011. Citizens had sent Erpenbach the emails hoping to influence his stance on the issue.

The Institute wanted to know “who” was trying to influence Erpenbach and from “where,” and argued that the public has an interest in knowing this information.

Erpenbach agreed to release the emails, but informed the requestors that he redacted personally identifiable information, including last names and emails addresses. The Institute sought the unredacted emails after narrowing its request, but Erpenbach refused to provide the unredacted copies.

Erpenbach said the information sought was “purely personal,” and the public interest favored nondisclosure to avoid threats and harassment against citizens who sent the emails concerning the controversial collective bargaining law. A circuit court agreed, granting deference to Erpenbach’s decision to keep those names confidential.

But in John K. McIver Institute for Public Policy v. Erpenbach, 2013AP1187 (April 9, 2014), a three-judge panel for the District II appeals court reversed, concluding that the public interest in nondisclosure “does not outweigh the public interest in disclosure.”

Nondisclosure Decision not a Senate Rule, No Deference

The appeals court first rejected Sen. Erpenbach’s claim that the practice and custom of the Senate allows Senators to decide whether disclosure of constituents’ personally identifying information should be disclosed or not. He said the Wisconsin Constitution prohibits courts from questioning the wisdom of the Senate’s Rules of Proceeding.

The panel noted that “the nondisclosure decision does not implicate the Senate’s Rules of Proceeding.” That is, those rules involve the process for passing legislation.

“Simply put, the Institute’s request for a writ does not relate to ‘purely internal legislative proceedings’ or implicate the methods or ‘process the legislature uses to propose or pass legislation,’” wrote Judge Mark Gundrum, noting the case is justiciable.

The panel also ruled that Erpenbach’s decision was not entitled to deference. It said Erpenbach could make an initial decision about disclosure, but courts have the ultimate say on whether a record should be disclosed under the open records law.

In making that decision, courts employ a two-part balancing test. It will weigh the public’s interest in disclosure with the public’s interest in nondisclosure.

Disclosure Outweighs Nondisclosure

The panel noted that Wisconsin has a very strong public policy in favor of complete openness in government and court rejected Sen. Erpenbach’s argument that some of the information was “purely personal” and thus not subject to the open records law.

“Public awareness of ‘who’ is attempting to influence public policy is essential for effective oversight of our government,” Judge Gundrum wrote.

The panel recognized that “purely personal” information could be redacted, even if the email was a public record and sought to influence a lawmaker’s policy stance.

For instance, an email that references the sender’s personal story about abortion to influence abortion-related legislation could be considered “purely personal.” In that type of circumstance, the record could be redacted to keep the sender’s name confidential.

But this was not the type of information at issue, the panel noted.

“[T]the redacted information sought here can provide the public with knowledge and insight regarding who was attempting, either individually or in an organized fashion, to influence the public policy changes under consideration and thereby assist the public in performing its important government oversight function,” Judge Gundrum wrote.

The public also has an interest in knowing where the emails came from, the panel noted, so the public understands who is attempting to influence lawmakers.

Finally, the court ruled that the public’s interest in keeping the redacted personally identifiable information secret did not outweigh the public interest in disclosure.

Erpenbach said he decided to redact the records to protect the identities of citizens who could have been harassed or threatened if their identities were revealed, because the emails related to a highly controversial bill with passionate voters on both sides.

“Erpenbach’s generalized concern of possible threats, harassment or reprisals could apply equally to any controversial policy,” wrote Gundrum, noting that Erpenbach’s view could lead to nondisclosures in any case involving heated policy debates.

“Public policy changes which individuals and groups feel passionately about have been enacted before and will be enacted again in the future,” Gundrum wrote.