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March 24, 2018

3/13/2018 7:30:00 AM
WILL takes lawmaker to court over records
Legislature releases only expensive paper copies of documents

Richard Moore
Investigative Reporter

In yet another open-records dispute involving the state Legislature, the Wisconsin Institute for Law and Liberty has sued state Rep. Jonathan Brostoff (D-Milwaukee) for refusing to turn over electronic records, opting to print them instead and charge what WILL says are unnecessary fees.

The case started last July when WILL research fellow Collin Roth made an open-records request to Brostoff for emails related to occupational licensing reform, an issue WILL has been integrally involved with over the past several years.

Roth specifically asked Brostoff to provide the emails in an electronic format, WILL states.

However, WILL states, Brostoff printed thousands of pages of documents and sent Roth an invoice for more than $3,000. That prompted WILL's attorneys to point out that the law requires custodians to provide electronic records when requested and also does not allow charging for paper copies of electronic files.

WILL says Brostoff refused to budge and so WILL is taking him to court.

This past week, WILL said the law explicitly defines records to include electronic files, and WILL says a printout of the text of an email doesn't reproduce everything in the actual electronic file.

Just like a transcript captures only one facet of a video recording, WILL asserts, a printout is no substitute for an original email file.

Tom Kamenick, deputy counsel and open government specialist at WILL, says such tactics are all about making it more difficult for the public to access public records.

"I see this all too frequently," Kamenick said. "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."

WILL says a similar case exists, which produced a ruling in January by a Dane County circuit court judge that state Rep. Scott Krug (R-Nekoosa) needed to provide electronic files when requested. WILL says Brostoff was informed of the case but still refused to comply.

WILL president and general counsel Rick Esenberg said the case was not about ideological differences. Brostoff is a liberal Democrat and Krug is a Republican.

"Unfortunately, both Republicans and Democrats occasionally fail to meet their obligations under our open records and open meetings laws," Esenberg said. "We've worked with advocates across the political spectrum to fix that. This is just the latest fight."

In addition to a requirement under the law, providing records electronically is the smart thing to do, WILL asserts.

"Why would a public servant waste taxpayer resources printing out copies of electronic files?" the group said in a statement. "That method is slower, more expensive, and less convenient for everybody than just copying the files onto a CD or flash drive (or even just emailing the files directly to the requester if the request is small)."

Roth said WILL has been on the frontlines of an effort to reform Wisconsin's occupational licensing laws and that openness was crucial.

"We believe citizens have a right to earn a living and that burdensome and unreasonable regulations often stand in the way of meaningful work," he said. "As with any public policy debate, government transparency is critical."

The complaint

According to the complaint, on July 10, 2017, Roth wrote Brostoff requesting all emails sent to or from his or his legislative staff's email accounts, whether government or personal, that included a list of key words related to the occupational licensing issue.

"If these records are stored electronically, please provide them in that electronic format," Roth wrote.

Brostoff responded the next day, saying the request would be fulfilled but the documents would be reproduced as paper copies and a fee would be required for the cost of the paper copies.

On Dec. 6, Rebecca Frank in Brostoff's office emailed Roth, stating that they had completed the request. She provided a cost estimate for producing the records, the complaint states.

The cost was either $3,239.76 or $1,808.84, depending on the way the key words were searched for.

On Jan. 3, the complaint continues, Kamenick, writing as Roth's legal counsel, wrote Brostoff, reminding him that the records request asked specifically for the electronic records in their original format and that, because the request specifically asked for the electronic records, they had to be provided that way.

"Providing electronic records in paper format does not comply with the Open Records Law," the letter stated.

Frank responded the same day, saying the Assembly chief clerk had confirmed that the law permits the documents to be provided in paper format, and that, per Assembly policy, they must be provided that way, the complaint stated.

On Feb. 2, Kamenick sent Brostoff a final letter requesting that he fulfill his obligations under the open records law and produce electronic records in the requested electronic format.

"In that letter, Plaintiff's counsel informed Defendant that the Dane County Circuit Court recently ruled against Defendant's colleague, Wisconsin State Representative Scott Krug, 'and determined that Assembly Representatives are required to provide records in electronic format when requested,'" the complaint stated.

Kamenick also attached an attorney general's opinion letter from 2011 saying that electronic records should be transferred to some "electronic medium" to be provided to the requester, and concluding that charging "per page" for such records was inappropriate.

Brostoff still stood firm.

"As directed by the Chief Clerk, I am again informing you that the Open Records Request you submitted has been printed and is ready for you to pick up," he wrote in an email on Feb. 5.

According to the complaint, the email contained the same cost estimates provided previously and was unresponsive to counsel's Feb. 2 letter.

The underlying explanation

WILL's underlying legal position is that, under the law, a record custodian must provide files in their native format, if requested, and Kamenick argued that position in his Jan. 3 letter to Brostoff.

"Providing electronic records in paper format does not comply with the Open Records Law," Kamenick wrote. "The Open Records Law does not permit a custodian to create a new and substantively different record in response to a request."

Kamenick pointed out that, under the law, a record was defined as "any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority."

Under this definition, Kamenick wrote, an electronic file on a government computer is a "record."

"It is material on which electromagnetic information is recorded and preserved, being kept by an authority," he wrote. "Regardless of the type of file, it is a record."

That created two distinct rights, Kamenick continued.

"A record requester has the right to inspect a particular file - for example, an email file - by appearing at the government office," he wrote. "A record requester also has the right to receive a copy of that same email file. Not a paper document with some of the same information, but an identical copy of that file with all the same information in it."

If a 'copy' differs in some significant way for purposes of responding to an open-records request, then it is not truly an identical copy, but instead a different record, Kamenick asserted.

"A paper printout of an email file does not contain the same information as the original file; it differs in a significant manner from the original," he wrote. "A printed document lacks substantial amounts of information, sometimes referred to as 'metadata,' from the original file..."

That includes such things as the author or creator of the file; the date the file was created; hidden header information, including blind carbon copy (bcc) recipients; and the server and folder location where the file was located, Kamenick wrote.

"Metadata is part of the 'electromagnetic information' maintained by an authority, and therefore meets the statutory definition of a record," he wrote. "Converting an email file into a paper document will erase all of that information. In no sense can a paper document be considered an identical copy of an email file. It is analogous to providing a transcript of an audio or video recording when the recording itself is requested, which is not permitted."

Roth had the right to obtain a copy of the email records he requested in the same native file format in which those emails are kept on government computers, Kamenick concluded.

Richard Moore is the author of The New Bossism of the American Left and can be reached at

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