Contact: Peg Sheaffer, MEA Communications Director, psheaffer@midwestadvocates.org
Judges affirm accountability for officials who violate the law and reject former natural resources official’s argument that text messages are not records
Madison, WI—Yesterday, the Wisconsin Court of Appeals for District I issued a decision in Midwest Environmental Advocates v. Prehn, a dispute concerning Wisconsin’s public records law. The case centered on whether former Natural Resources Board Chair Frederick Prehn had unlawfully withheld public records—including text messages Prehn exchanged with former Governor Scott Walker about Prehn’s plan to remain in office past the expiration of his term.
Although he released the text messages in 2022 as part of an agreement negotiated by Midwest Environmental Advocates (MEA) attorneys, Prehn continued to challenge the scope of the public records law in the appellate courts.
The appellate court’s decision addressed two significant issues that will affect open government and the public records law moving forward: whether text messages on private cell phones qualify as public records and whether officials who withhold public records but then turn them over during litigation can escape judgments against them and orders to pay for attorney fees.
On both fronts, the appellate court came down on the side of openness and transparency. It rejected the idea that public officials can move discussions about government business to text messaging apps on private cell phones and then claim the records are personal conversations and not subject to transparency and public scrutiny.
MEA Staff Attorney Adam Voskuil said, “This decision is a win for the people of Wisconsin. It strengthens our democracy by ensuring that government officials conduct their business with openness and transparency. Had Prehn’s arguments been accepted, the public records law and our state’s commitment to open government would have been significantly weakened.”
The appellate court also reversed the lower court’s determination that because Prehn released the records while the legal proceedings were still ongoing, MEA was not entitled to legal fees. The Court of Appeals found that the lower court’s ruling was based on misinterpretations of the Wisconsin Supreme Court’s 2022 ruling in Friends of Frame Park v. City of Waukesha and a 2023 Court of Appeals ruling in Wisconsin State Journal v. Blazel.
“The ability to recover attorney’s fees is vital for journalists and for other groups and individuals who are forced to take legal action to secure their rights under the public records law. We are pleased the court’s decision maintains this important component of public transparency and open government in Wisconsin,” said MEA Staff Attorney Rob Lee.
“Prehn arbitrarily withheld public records for well over a year,” said Christa Westerberg, an attorney at Pines Bach, who co-litigated the case with MEA. “He kept these records from the public until MEA filed suit and a court ordered their disclosure. If officials who brazenly violate the public records law—and only comply after being sued—can avoid judgments against them, there would be no real incentive for anyone to follow the law in the first place.”
