It was a good day in court this week — a very good day — for fans of open government and the right of Wisconsin residents to monitor the workings and communications of state lawmakers.
In a three-year-old dispute between State Rep. Scott Krug, R-Nekoosa, and Bill Lueders, editor of the Progressive magazine, the three-judge Court of Appeals in Waukesha told the lawmaker in no uncertain language that he had to provide records of his emails in the electronic form that Lueders had requested.
At the heart of the dispute was metadata — the footprints of information carried in emails that show who handled it, when documents were created and where. It’s carried in the electronic version and can be easily copied on a flashdrive or sent electronically, but the tracking does not show up on a paper printout.
In 2016 Lueders, who is also president of the Wisconsin Freedom of Information Council, had requested Krug’s correspondence — including emails — his office had with constituents regarding specific legislation related to water and conservation issues. Krug complied by giving Lueders access to paper copies.
Lueders enhanced his request and specified he wanted an electronic copy and Krug refused, saying he had already provided paper copies. After Lueders won a ruling in circuit court, Krug appealed.
In its ruling Wednesday, the Appeals Court was blunt: “Notably, (Rep.) Krug did not refuse to provide the emails to Lueders in electronic form on the ground that they were protected from disclosure on some legal basis. No such reason was suggested. Rather, Krug effectively indicated that the paper printouts were ‘good enough’ to satisfy Lueders’ second, enhanced open records request. They were not.”
“They were not.” With those words, the Appeals Court once again reaffirmed its position on the value, importance and accessibility of electronic records that are sought under the state open records law.
In its ruling, the court noted it had previously ruled in favor of the Milwaukee Police Association when it had requested a digital copy of a 911 call and the Police Department responded by providing an analog copy of the call — which can not be analyzed and enhanced and is not therefore a “copy” of the original record.
It is of note, too, that while Lueders is editor of a liberal magazine, he had support in his electronic records battle with the lawmaker from four conservative groups who also monitor state legislation — the Wisconsin Institute for Law and Liberty, the MacIver Institute for Public Policy, the Badger Institute and Americans for Prosperity.
The simple fact is that electronic copies carry more background information that is easier to analyze and cheaper to reproduce — and, yes, there have been instances where government agencies, both state and local, have tried to discourage public information requests by running up paper printing costs.
We hope that with this Appeals Court ruling, the response of lawmakers and government officials to a public records request will now switch to: “Paper or plastic?”
“Notably, (Rep.) Krug did not refuse to provide the emails to Lueders in electronic form on the ground that they were protected from disclosure on some legal basis. No such reason was suggested. Rather, Krug effectively indicated that the paper printouts were ‘good enough’ to satisfy Lueders’ second, enhanced open records request. They were not.” State Appeal Court ruling