Center for Media and Democracy and Common Cause File Open Records Lawsuit Against ALEC Members in Wisconsin

The Center for Media and Democracy and Common Cause filed suit today against five Wisconsin legislators who also are members of the American Legislative Exchange Council (ALEC) over their failure to provide ALEC-related records sought under Wisconsin's Open Records Law.

CMD and Common Cause submitted open records requests on September 11, 2012, to all known members of ALEC in the Wisconsin Legislature asking for ALEC-related emails. The request covered correspondence on official legislative email accounts, as well as "personal" email accounts that some members maintain on services like Gmail or Yahoo. The suit alleges those accounts are subject to the Open Records Law when used for official governmental business, such as correspondence related to the "model" legislation approved by ALEC member corporations and state legislators at ALEC meetings.

According to CMD and Common Cause, evidence strongly suggests that the legislators have shifted their ALEC correspondence to web-based "personal" email accounts to evade open records requests. For example:

• The one record released in response to an open records request to Rep. Jeremy Thiesfeldt (R-Fond du Lac) includes an email to ALEC from his assistant stating: "Please send ALL ALEC material to the Representative's PERSONAL e-mail at [redacted] from now on. Please do not send his State account (@legis.wi.gov) any more updates. He will keep up through his personal account." (capitalization in original)
• In an ALEC Education Task Force document obtained through a different open records request, Rep. Tyler August (R-Lake Geneva) provides his only e-mail contact as his personal "@charter.net" e-mail address, but not his official legislative e-mail address.

Records custodians for Reps. Thiesfeldt and August asserted to CMD and Common Cause that they provided all records required by law. But they have repeatedly refused to confirm that they searched the members' personal email accounts, even after being showed the legal basis for why such records are covered by Wisconsin Open Records Law. Representatives Dan Knodl (R-Germantown) Tom Larson (R-Colfax), and Pat Strachota (R-West Bend) were similarly evasive. Their responses are explained in more detail below.

"These legislators are disregarding Wisconsin's long tradition of transparent and open government, and violating both the letter and the intent of the state's Open Records Law," says CMD Staff Counsel Brendan Fischer, who filed the complaint. "As the Wisconsin Supreme Court has observed, 'If Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State. All branches of Wisconsin government have, over many years, kept a strong commitment to transparent government.' Legislators cannot evade Wisconsin's sunshine laws and traditions simply by re-routing official government e-mails from a legislative account to a Gmail account."

Common Cause Staff Counsel Nick Surgey added, "Wisconsin's open records law says that if an email message deals with the public's business, the public has a right to see it - there's no distinction between emails stored in state email accounts and those stored in personal accounts. But these members seem to think they're above the law."

"There's a pattern emerging here," Surgey added. "With ALEC under increasing scrutiny, members appear to be looking for ways to hide their involvement. Open records requests in some states that last year yielded thousands of pages of ALEC-related records often now produce only dozens -- but we know ALEC is as active as ever."

Information that has been released through past open records requests show corporations making donations to fund flights and hotel rooms for Wisconsin legislators who attend ALEC meetings. CMD contends that this violates state ethics laws and it has filed a complaint with the Government Accountability Board.

CMD has also found that other Wisconsin legislators are exploiting a loophole in the Open Records Law by routinely deleting emails relating to their correspondence with ALEC; that activity is documented here. ALEC has also apparently helped lawmakers evade Wisconsin's transparency-in-government laws by sending some communications via online links which expire within 72 hours. The links go to Internet drop boxes where legislators can access ALEC documents but generally expire before they can be obtained by reporters and citizens seeking those documents under state open records law.

Aides to legislators named as Defendants in the lawsuit had these responses when asked directly to confirm - with a simple yes or no -- that they searched personal email accounts for records responsive to open records requests:

• Rep. August's staffer replied, "Our office has no records." When asked again to confirm a search of personal email accounts he repeated, "Our office has no records." When asked a third time, he said, "Please consider this request completed."
• Rep Thiesfeldt's staffer evaded the question by conducting a search of a staffer's official email account. When asked again to confirm a search of the legislators' personal emails he stated that Rep. Thiesfeldt "has no records." When asked again to confirm that he searched personal email accounts, he replied, "I have complied with your request."
• Rep. Knodl's staffer stated, "The search included all records pertaining to your request," and, when asked again to directly confirm a search of personal email accounts, stated, "The search included all records pertaining to your request." He failed to respond to additional requests for confirmation.
• Rep. Larson's staffer stated, "We have thoroughly searched our records and have complied with the open records request." When asked again to directly confirm, yes or no, whether a personal email search was conducted, he again stated, "We have complied with the open records request," and did not reply to further requests for confirmation.
• Rep. Strachota's staffer claimed that the office had no ALEC-related correspondence because, "The representative does this on her own personal time." Told that official emails sent on personal email accounts are subject to the Open Records Law, she asserted that, "This office has nothing pertaining to ALEC from the dates in which you have requested," after which point she stopped replying.

Today's lawsuit was filed with the Dane County Circuit Court, which has jurisdiction over compliance with the legal requirements of Wisconsin sunshine laws.

The Center for Media and Democracy launched its award-winning ALEC Exposed project in July 2011 and has continued to investigate the shadowy organization for the past year. In April, Common Cause submitted more than 4,000 pages of ALEC records to the IRS as part of a "whistleblower" complaint charging the group with violating federal tax laws that put limits on lobbying by tax-exempt organizations. The work by CMD and Common Cause on exposing ALEC was recently featured on Bill Moyers' PBS program Moyers & Company, and was aired on public television stations in Wisconsin and nationally.