About halfway through a three-hour hearing Tuesday afternoon on the lawsuit brought by Isthmus and the Wisconsin Associated Press over emails received by the office of Gov. Scott Walker regarding his "budget repair bill," Dane County Judge Patrick Fiedler made it clear he understands what is at issue perhaps what is at stake as much as anyone. (Full disclosure: I am a named plaintiff in this lawsuit.)
"It's obvious to me why the media wants this before the outcome of the budget repair bill is known," said Fiedler during a scheduling conference that turned into a substantive discussion of the case's unresolved issues. The former secretary of the state Department of Corrections noted that in his own dealings with the media, he's noticed that "typically they want the information sooner rather than later, because the root word of 'news' is 'new.'"
Unfortunately, it seemed at times during this hearing that the release of these emails which Walker has characterized as being mostly positive might happen later rather than sooner. This even though there was no dispute that they are public records, or that the media requesters and governor's office were not very far apart in terms of reaching an agreement that could provide access.
At his press conference on Feb. 17, Walker said his office had received more than 8,000 emails in the week since he unveiled his proposal to extract benefit concessions and rein in collective bargaining rights from most public employees. He said the "the majority are telling us to stay firm, stay strong, to stand with the taxpayers." At another press conference the following day, Feb. 18, he said the number of emails had risen to more than 19,000. This statement was made within an hour of Isthmus hand-delivering a records request; the Associated Press made its own request earlier that day.
The governor's office did not respond to either request until about two hours after the lawsuit was filed last Friday, March 4, although both the AP and Isthmus sent follow-up e-mails asking for updates as to the status of their requests. At Tuesday's hearing, this failure to respond was chalked up to "a clerical oversight"; Judge Fiedler, while not doubting this, said it seemed obvious to him that the sending of these responses was triggered by the filing of the suit.
On Monday, Walker's office invited Isthmus and the AP to look at some of these emails on its computers. The emails that had been sorted into folders labeled "Con BRB [Budget Repair Bill]" and "Pro BRB" showed a lopsided tally at that time of 46,124 pros to just 7,349 cons. More detailed analysis was not possible, under the circumstances; both media outlets felt this access was unworkable, and asked for these records on disc.
Tuesday's hearing was attended by Brian Hagedorn, the governor's chief counsel, and Assistant Attorney General Clay Kawski, representing the state. I appeared at the plaintiffs' table alongside Christa Westerberg, a Madison attorney representing Isthmus and the AP.
Fiedler quickly established that the process of saving emails to a computer disc was not complicated, and could be accomplished in perhaps as little as ten minutes. But the sticking point, explained Kawski, was that many of these emails have never been read, much less reviewed for sensitive personal information that might have to be redacted.
Kawski provided examples of emails he felt presented a particular concern, like one from a parent worried about losing health-care benefits for a child with severe health problems that are discussed in-depth. A couple other emails were from people who raised concerns of harm should union supporters learn they supported Walker's plan.
To keep content like this from becoming public, Kawski argued, the office would have to conduct a careful review, using what is known as a "balancing test" to determine if the statutory presumption of openness is outweighed by other considerations. Moreover, "We would argue that the balancing test should be applied to each and every email." The number of emails at issue for the longer time period encompassed by the AP's request, he said, has been estimated at 125,000. He allowed that this would take "a great deal of time."
Westerberg argued that many of these concerns were answered by the agreement of her clients to not use the people's email addresses, home addresses, personal medical information, Social Security numbers or the names of anyone who clearly asked for anonymity. But the requesters balked at a counterproposal from the governor's office for the media to get prior approval before referring to anybody by name and hometown.
"If Sen. Mark Miller has sent an email to the governor's office saying he would like a meeting, we would like to use that name without having to pre-clear it with the governor's office," said Westerberg, who made the same point about potential emails from David Koch. She also noted the delay obtaining preclearance might cause.
Kawski raised several other issues, including that the filing of the lawsuit was premature. Feidler rejected this: "I'm satisfied that the … plaintiffs acted in good faith in filing when they did." He also noted that most of the case law in Wisconsin regarding access to records has been created as the results of legal actions brought by media, who are where the public goes to get information and do "not necessarily accept on blind faith the representations of anyone who holds public office."
"Lawsuit stands," declared Fiedler. "We're going ahead." But the judge held out hope that the two sides might yet reach some sort of deal. The key unresolved issue is whether the balancing test must be applied to each and every email, whether it can be applied to the category as a whole, or whether agreed-on or court-ordered restrictions could address what information can be used without the need for applying the balancing test.
A briefing schedule was set. The governor's office has until March 11 to file its response to the complaint; the plaintiffs must file their brief on the unresolved issued on March 15; the governor's office's response brief is due March 18. Fiedler promised an oral ruling on Monday, March 21, at 1:30 p.m.