Justices are considering limits on how the Wisconsin public records law applies to courts

Molly Beck | Milwaukee Journal Sentinel

MADISON - The state Supreme Court is deliberating over how the state's public records law applies to justices, judges and other court officials — setting off alarm bells with government transparency advocates.

It's unclear exactly what the justices are considering — the state's court system director said earlier this month the high court intended to decide whether the court system is subject to Wisconsin's public records law.

But on Monday, the Supreme Court spokesman indicated the court is weighing something narrower: whether email addresses for judges and justices should be released, potentially answering a long-debated question of whether unsolicited, direct communication from the public can disrupt the judicial process.

Supreme Court spokesman Tom Sheehan said publishing email addresses of judges and justices creates "a substantial risk" of opening the door for litigants to communicate with the judge overseeing their case outside the presence of an opposing attorney, which could lead to the disqualification of the judge.

"This could cause substantial disruption to the court system and the administration of justice," Sheehan said. Currently, traditional mail is screened by the clerk of courts to ensure judges do not receive direct communication by a litigant.

A records request filed June 12 by conservative radio show host Mark Belling seeking email addresses for judges, justices and other court officials prompted the review, Sheehan said.

The court's deliberations are troubling state government watchdogs who are worried the court could go further and end up matching an unsuccessful effort by the state Legislature three years ago to keep private nearly every record created by a lawmaker.

That's because until Monday, the only public explanation about the Supreme Court's week-long review was by state courts director Randy Koschnick, who told Belling the Supreme Court was weighing whether they are subject to the law, a message the Supreme Court has still not explained.

Sheehan's comments Monday followed days of unanswered questions and came after the Milwaukee Journal Sentinel published a story on the review.

The review also prompted at least two court officials — including Koschnick — to wait for a decision from the high court before responding to requests for records.



RELATED: Lawmakers slash public records access in budget bill

RELATED: Weeks after uproar, Robin Vos sought open records law change

Gina Colletti, Waukesha County clerk of courts, told Belling last week she would wait to see what the Supreme Court decided before responding to a similar request he filed with her office for email addresses of county judges and court officials.

"I hope the scope of this review is as narrow as Sheehan now suggests, but that was not what Koschnick told Belling, or apparently, what he told Gina Colletti," said Bill Lueders, president of the Wisconsin Freedom of Information Council, who added he doesn't believe publishing email addresses will increase the danger of direct communication by litigants.

"If the courts are not transparent, it will be much harder for them to maintain, or even deserve, the public's trust," he said.

Lueders and other officers of the Freedom of Information Council sent a letter to Supreme Court justices last week seeking more information about the review and requesting a public hearing before the court makes a decision. The group has not received an answer.

"The state court system represents more than $100 million in taxpayer spending per fiscal year and decides critically important matters related to criminal and civil justice," the council wrote. "The applicability of the open records law to the system is of

significant public interest, and any decision on this issue will benefit from input by informed and interested parties."

Sheehan told the Journal Sentinel, Lueders and Belling separately Friday that Belling would be receiving a response to his request for records but didn't address the broader question of if the Supreme Court was considering whether the court system is subject to the records law.

Belling said he didn't believe the Supreme Court's explanation.

"Their email addresses are obviously available already to an almost unlimited number of people, including anyone any of them have already emailed," he said. "Most importantly, there are no rules prohibiting any judge or court official from releasing their emails. If (such communication) is such a problem, why are there no rules banning judges from giving their email addresses out?"

In recent years, justices have often released records sought by reporters but have noted at times in doing so that the Supreme Court has never determined whether the records law applies to itself.

And in 2004, then-Attorney General Peg Lautenschlager issued an opinion to the state courts saying the public interest in preventing such communication, and the difficulty of doing so if judges' direct email addresses are readily accessible to the general public, outweigh the "relatively slight public interest in releasing such information."

Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said it's unclear to him what the court is considering but that because the Constitution guarantees separation of powers, the court could look at whether the court system is subject to the records law because the law's requirements are issued by lawmakers.

He also said the court might decide that the public records law ought not to apply to documents "reflecting deliberation or those reflecting decisions or votes other than the released opinions and orders" because releasing such documents "might unduly interfere with the judicial function."

Gov. Scott Walker used a similar reason to explain why his office and Republican lawmakers wanted to keep records private in 2015.

"Another thing it might do is provide guidance on how the balancing test is to be applied to the courts," Esenberg said, referring to a test records custodians use to decide whether public interest in records outweighs any harm that might be done to the proper function of government or to privacy by releasing the records.

Lueders said court officials already may decide to keep such records private because the state public records law already allows courts to withhold records if it has a good reason for doing so.

"I am unaware of any situation in which having to comply with the open records law has interfered with judicial function. Why fix what isn't broke?" he said.

Reporter Patrick Marley of the Milwaukee Journal Sentinel contributed to this report.