Judge’s Ruling in MacIver v. Erpanbach Case Makes “Bad Law”
April 18, 2013
Nearly two years ago, the John K. MacIver Institute for Public Policy sent an open records request to State Senator Jon Erpenbach requesting all emails he had received relating to Act 10’s changes to collective bargaining. The Senator provided the requested emails, but not before redacting all of the senders’ contact information, including the names and email addresses of public employees. The Wisconsin Institute for Law Liberty (WILL) filed suit on behalf of the MacIver Institute to obtain the identities of those government workers who had communicated with Erpenbach, using taxpayer resources and government email accounts to do so while on taxpayer time.
This week, Judge Robert VanDeHey ruled that the redactions were within Erpanbach’s rights. While it is important to remember that the court previously rejected Senator Erpenbach’s argument that the open records law cannot be enforced against legislators, attorney Rick Esenberg of WILL issued the following statement:
We respectfully disagree that the public does not have a right to know which of its employees used taxpayer provided resources to engage in political activity. When employees, often in violation of specific workplace policies, use public computers to communicate with public officials on matters of public policy, the public is entitled to know – without regard to whether a politician or court believes that the conduct is “important enough” to be subject to disclosure.
This is just round one. We are confident that the public’s right to know will ultimately be vindicated.
The editorial below discusses why this will create a bad precedent for the future and why the decision should be appealed.
Beloit Daily News Editorial: Judge’s ruling makes bad law
YES, THIS IS A big request in polarized Wisconsin, but we’re going to ask it of readers anyway: For a moment, set partisan politics aside.
A trial court judge ruled this week that state Sen. Jon Erpenbach was within his rights to black out identifying information for senders of emails to him during the battle over Gov. Scott Walker’s collective bargaining changes. The case involved an open records request from the conservative MacIver Institute seeking the emails. Erpenbach was sued and eventually turned over 2,600 emails after blacking out the identifying information. MacIver wanted that information to check whether government employees were engaging in political activities while on the taxpayers’ clock, using the taxpayers’ computers.
The judge said no. “The senator’s concern that his constituents might face retaliation must be considered in light of the nuclear environment that existed when he made the decision to redact the email addresses,” Grant County Circuit Judge Robert P. VanDeHey wrote in his ruling.
BOTH THE SENATOR and the judge may be within their rights, but it’s bad law nonetheless.
It’s common for private businesses to have policies restricting personal use of electronic company equipment. People can get fired for violating those policies.
Likewise, public employees are not supposed to use taxpayer-owned equipment for personal use. Nor are they supposed to engage in political activities during hours they are paid to work for the taxpayers. The Milwaukee County District Attorney’s office spent years investigating just that sort of activity in the John Doe case recently concluded.
The judge’s ruling essentially says it is more important to protect the workers from any consequences for such behaviors, than it is to block them from engaging in the behavior in the first place. That’s a license for workers so inclined to use public computers for political activities whenever they please, knowing any evidence identifying them and exposing the behavior can be blacked out by political friends.
Like we said, bad law. Whether an employee is corresponding with Erpenbach in opposition to Walker’s law, or an employee is politicking out of Walker’s office on behalf of his race for governor, that’s not why taxpayers shell out cash. The MacIver Institute may appeal the ruling. We hope they do.
The above editorial was published by the Beloit Daily News on April 17, 2013 and can be seen here.