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Lawsuit settled: Isthmus, AP will get emails, Walker must pay legal costs
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Credit:Bill Lueders

The office of Gov. Scott Walker has agreed to a settlement in a lawsuit brought by Isthmus newspaper and the Wisconsin Associated Press over access to emails sent to the governor in response to his "budget repair bill." The settlement requires the governor to produce the emails and pay attorney fees for the plaintiffs' costs in bringing the suit.

The settlement calls for the defendants, Gov. Scott Walker and his office, to produce a disc containing these emails next Tuesday, March 22, at or after 4 p.m. It is agreed that the governor will produce emails "in the folders in which they are stored at the time of production."

In exchange for this access, the media requesters have agreed not to use the names of individuals who have sent emails to the governor in cases where there is reason for withholding them, as when they contain personal medical or financial information or raise a concern about retribution. The requesters also agreed not to use, publish or disclose any home addresses, email addresses, telephone numbers or Social Security numbers that may be contained in these emails.

Attorney Christa Westerberg represented Isthmus and the AP in this action; the governor and his office were represented by Assistant Attorneys General Clayton Kawski and Mary Burke. The governor's chief legal counsel, Brian Hagedorn, also took part in the case.

As part of the settlement, the governor's office agreed to pay just over $7,000 in plantiffs' attorney fees and costs. But the settlement says this payment "is not nor is it to be construed as any admission of liability or of a violation of the public records law by Defendants, their agents, their officers or their employees."

Isthmus and the AP both made requests, under the state's Open Records Law, on Feb. 18, seeking emails that had been received by the governor's office in response to his "budget repair bill." Gov. Walker stated at his press conference on Feb. 17 that his office has gotten "over 8,000 emails" over the last few days and "the majority are telling us to stay firm, stay strong, to stand with the taxpayers."

The next day, Feb. 18, the governor said his office had now gotten 19,000 emails from state residents, with the "majority in favor" of his plan.

Both Isthmus and the AP sent follow-up emails seeking information as to the status of their requests, which drew no replies. The AP updated its request on Feb. 25 to include emails received as of that date.

Walker's office sent responses to both Isthmus and the AP shortly after 5 pm on Friday, March 4, about two hours after the lawsuit was filed. The office said the responses were written earlier but not sent due to a "clerical oversight."

At a March 8 hearing on the lawsuit, Dane County Judge Patrick Fiedler said he believed the lawsuit was the "trigger" that prompted the office's responses, and rejected arguments that the filing of the suit was premature.

"I'm satisfied that the ... plaintiffs acted in good faith in filing when they did," he said, explaining that he understood this was a matter of some urgency to the media requesters. "It's obvious to me why the media wants this before the outcome of the budget repair bill is known."

At this court hearing, Assistant Attorney General Kawski argued that the governor's 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, for "each and every email" at issue -- at that time more than 125,000. He said this was needed to prevent the release of possibly privileged information, like personal medical histories.

Fiedler set a briefing schedule that would allow him to issue a ruling on Monday, March 21, but he held out hope that a settlement could yet be reached. Today, the parties notified Judge Fiedler that an agreement was reached.

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