A Democratic state lawmaker being sued for an alleged violation of Wisconsin's open records law says he's being bullied by "right-wing extremists." But the head of the state's Freedom of Information Council says Rep. Jonathan Brostoff, D-Milwaukee, is in the wrong.
The Wisconsin Institute for Law & Liberty, a conservative law firm based in Milwaukee, is suing Brostoff for refusing to release electronic copies of his emails and instead requesting more than $3,000 for printed copies. The lawsuit comes less than a month after a Dane County judge ruled that a Republican state lawmaker should have provided a journalist with electronic copies of requested emails.
In July, WILL research fellow Collin Roth requested copies of emails related to occupational licensing reform, an effort the group supports and Brostoff opposes. Roth specifically requested the emails be delivered in an electronic format.
A Brostoff aide told Roth in December that the office had printed thousands of pages to fulfill the request, at a cost of $3,240.
WILL deputy counsel Tom Kamenick responded, arguing that Roth had the right to receive the emails in their native format and that state law prohibits records custodians from charging for unnecessary printing.
Citing the advice of Assembly Chief Clerk Patrick Fuller, Brostoff aide Rebecca Frank told Kamenick that state law allowed the office to provide the emails in paper format, and that according to Assembly policy, they "must" be delivered that way.
Kamenick's response, sent Feb. 3, pointed to Dane County Circuit Judge Rhonda Lanford's ruling in January that Rep. Scott Krug, R-Nekoosa, should have provided electronic copies of emails requested by Freedom of Information Council president and Progressive Magazine managing editor Bill Lueders.
"If a requester indicates that his ability to access the record would be best served by a particular format of copy, the custodian should produce the copy in that format unless doing so would be so burdensome as to be inconsistent with the conduct of government business," Lanford wrote in her ruling.
WILL filed suit against Brostoff on Thursday in Dane County circuit court, calling his denial of electronic copies "arbitrary and capricious."
Brostoff said Friday he is a "target" for WILL because of his opposition to the occupational licensing reforms the organization supports. He said he believes the firm requested his emails because he had sent a lot of correspondence to groups that would be affected if occupational licensing regulations were rolled back.
He argued the request was a tactic to keep his small staff busy so he couldn't fight effectively against the conservative group's efforts.
"I do have to say I’m kind of proud," Brostoff said. "This is the first time I’ve had an extreme right-wing group actually sue me. It’s kind of a nice notch in the cap in that regard, you know what I’m saying? I made it. I’ve been so effective at stopping their extreme agenda that now I'm on their hit list. That’s what’s up."
Asked why he didn't provide the emails electronically as requested, he said his office followed the guidance of the Assembly chief clerk.
"That’s what we understood the law to be. If the law changes we’re happy to comply," Brostoff said when asked about the ruling against his colleague in a similar dispute. "We went with what the law was, what we were told by our in-house experts at the time."
Brostoff said the lawsuit is "more about intimidation and bullying" than it is about access to records.
"I think they’re going to keep on attacking me, keep going after me, keep trying to bully me and they’re going to realize that I ain’t no punk and I’m not afraid of them," Brostoff said. "They’re going to end up spending a lot of Bradley Foundation and Koch brother money trying to justify their existence to their extreme right-wing donors and I’m going to keep doing the right thing and fighting for the little guy."
WILL president Rick Esenberg said in a statement the lawsuit is "not about ideological differences," noting that the organization has partnered with open records advocates "across the political spectrum" to fight violations of the state's laws.
WILL recently partnered with Madison's Isthmus newspaper to sue the Madison Police Department for failing to turn over more than 700 pages of records responsive to a reporter's request.
"I see this all too frequently," Kamenick said in a statement. "Instead of doing things the easy way, custodians intentionally make the process difficult and expensive, discouraging people from even making records requests. We shouldn’t put up with that."
Lueders, the FOIC president who successfully sued Krug, said he believes Brostoff was following the advice of the Assembly chief clerk, but said it is "abundantly clear" lawmakers should not rely on that advice for open records disputes.
Lueders noted that state agencies are generally advised to provide electronic copies when they are requested in that format.
"I think that public officials in Wisconsin ought to be providing electronic records in electronic form. A judge in Dane County has ruled that should happen with regard to legislative records and I expect that WILL will win its case as well," Lueders said. "There is no justification for printing out reams of copy and demanding huge amounts of money. They’re simply trying to discourage records requests."