Wisconsin Court Affirms Right to Electronic Public Records

WAUKESHA, Wis. (CN) – The Wisconsin Court of Appeals upheld Wednesday an order requiring a lawmaker to provide electronic copies of emails requested under the state’s open-records law instead of giving only hard copies to the journalist who asked for them.

The case began three years ago when Bill Lueders emailed state Representative Scott Krug, R- Nekoosa, requesting to review any and all email correspondence sent or received by Krug or his staff dating from Jan. 1 to April 8, 2016, regarding legislation about state waterways, conservation and the Wisconsin Department of Natural Resources.

Krug responded shortly thereafter by providing Lueders, president of the Wisconsin Freedom of Information Council, with paper printouts that Lueders could then inspect and purchase.

After inspecting the printouts, which were not complete, Lueders emailed Krug and specifically requested to receive the records in electronic form in an email folder, flash drive or CD.

Krug denied this request, citing a provision in the state’s open-records law that says a records request has been fulfilled as long as the copies are “substantially as readable as the original,” which the lawmakers claimed the printouts were.

Lueders then filed a mandamus petition seeking to force Krug to provide electronic copies of the records, which was granted by Dane County Circuit Judge Rhonda Lanford.

On Wednesday, a three-judge panel of the Wisconsin Court of Appeals led by Judge Mark Gundrum affirmed the lower court’s opinion.

Gundrum wrote in the 13-page opinion that “Krug’s appeal falters right out of the gate due to his erroneous reading” of the open-records statute.

The provision cited by Krug states that if a requester appears in person, the custodian may provide the requester with a copy substantially as readable as the original.

Gundrum pointed out, however, that Lueders made both his first and his second, enhanced request via email, so the statutory language cited by Krug “simply does not apply at all.”

The judge said that while the electronic copies of the requested emails and the printouts contain the same communications, the printouts are missing certain other “substantive information” like metadata showing when documents were created and who created them.

The ruling states that this key interface discrepancy, which an expert on behalf of Lueders found during discovery, shows that while paper printouts may have satisfied Lueders’ initial request, his enhanced request necessitated providing the electronic copies.

Gundrum’s opinion cited a prior ruling in which the Milwaukee Police Association, or MPA, made an open records request of the Milwaukee Police Department for a copy of a particular 911 call. The MPD responded by providing the MPA with an analog tape recording of the call even though it had originally been recorded as digital audio.

The MPD then denied the MPA’s enhanced request for that digital tape – which it sought to conduct a spectrographic and waveform review as well as to enhance the conversations – on the basis that it had already satisfied the MPA’s request with the analog tape.

In that case, the court found on appeal that the MPD had failed to satisfy the MPA’s enhanced request for the digital tapes.

“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,” Gundrum wrote.

Gundrum was joined on the panel by Judges Paul Reilly and Brian Hagedorn, who was recently elected to the Wisconsin Supreme Court.

Lueders called the ruling “a major win for records requesters in Wisconsin.”

“The ruling rejects the excuses conjured up by the custodians in this case to deny access to records in electronic form and clearly establishes that electronic records contain additional information beyond what is provided with printed paper copies,” he said in a statement. “It should end all doubt that requesters who ask for records in electronic form- often the simplest way to provide them- are entitled to receive records in electronic form.”

Krug could not be immediately reached via email for comment Wednesday afternoon.

In a similar case, Representative Jonathan Brostoff, D- Milwaukee, was sued in February 2018 by conservative legal group Wisconsin Institute for Law & Liberty after Brostoff refused to honor a request for electronic records of emails, instead insisting that the group’s researcher pay more than $3,000 for printouts. That case was settled before it went to trial.

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