AG ON HER OWN ON OPEN RECORDS CASE
CAN'T SUE ON STATE'S BEHALF
By By Mike Miller The Capital Times
Attorney General Peg Lautenschlager is free to pursue an open records request against state lawmakers, a Dane County circuit judge has ruled, but cannot proceed in the lawsuit on behalf of the state.
Dane County Circuit Judge David Flanagan said state law does not give the attorney general the power to file suit against two legislators for refusing to allow her or her office to look at drafts of so-called concealed carry legislation, but Flanagan refused to dismiss the suit entirely, saying Lautenschlager has the same right to seek enforcement of the open records law as any other citizen and her request for a mandamus action can proceed. Flanagan dismissed the state as a party to the suit but allowed Lautenschlager and Deputy Attorney General Dan Bach to continue as individual plaintiffs.
But Mike Bauer, administrator of legal services in the state Justice Department, said Lautenschlager could still act as attorney general. "She cannot bring the lawsuit on behalf of the state because the statutes do not allow that unless the Legislature or governor makes the request, but she can act individually as attorney general," Bauer said.
Lautenschlager sought to force disclosure of bill drafts of the proposals to allow Wisconsin citizens to carry concealed weapons after those drafts had been shown to lobbyists who supported the bill but not to the public. When the authors of the bills, state Sen. Dave Zien, R-Eau Claire, and state Rep. Scott Gunderson, R-Waterford, refused to disclose the bills, she filed suit against them.
She said Tuesday she was pleased with the judge's ruling.
"In refusing to dismiss the action ... Flanagan ruled that I could proceed with the enforcement action under the public records law brought against two legislators who refused to provide the Wisconsin Department of Justice with access to bill drafts," Lautenschlager said in a release.
"The public policy issue presented in this case is a very important one: Can a member of the Wisconsin Legislature selectively choose to share the contents of a bill draft with certain special interest lobbyists but deny the same access to other members of the public? The court's ruling on this motion is a positive development in the advocacy of open and accountable government," she said.
In most states, attorneys general would have the authority to file such lawsuits, but in Wisconsin the attorney general is limited by statute as to what legal actions can be filed. Flanagan said that no law specifically authorizes the attorney general to file a lawsuit on behalf of the state against the lawmakers, even though the law would allow her to file an action if a citizen requested the records.
But he also noted, "The attorney general holds no greater nor any lesser ability than any other person in Wisconsin to tender to a public authority a request for access to a public record."
Although Flanagan allowed the lawsuit to continue, Republican attorney general candidate Paul Bucher, Waukesha County district attorney, accused Lautenschlager of using her office to "pursue her personal political agenda," and said she should withdraw the suit and tell the public how much money has been spent on the case.
Bucher did not weigh in on the underlying issue of the propriety of lawmakers showing bill drafts to lobbyists but not to the public.