Court of Appeals denies Mequon-Thiensville's appeal of open records lawsuit

The Mequon-Thiensville School District has lost an appeal of a circuit court decision on an open records lawsuit filed by a former city of Mequon alderman.

The Wisconsin Court of Appeals District II ruled Dec. 6 that the Mequon-Thiensville School District must turn over to Mark Gierl email distribution lists for district alumni, the district's Momentum newsletter and recreation department.

“The law is perfectly clear that government distribution lists — whether emails, phone numbers, or mailing addresses — must be released to record requesters,” said Gierl's attorney, Tom Kamenick, president and founder of the Wisconsin Transparency Project, in a news release. “Government custodians need to stop obstructing the public’s access to this information.”

"Judges have ruled against MTSD on this issue four times in a row. They need to stop wasting everyone’s time and money," Gierl said in the release.

Mequon-Thiensville School District Chief of Communications Molly Loucks said in an email to a reporter Dec. 18 that the district is aware of the ruling and is working with its legal counsel "to determine next steps."

Here's more information about the lawsuit and its circumstances.

When was the lawsuit filed?

The lawsuit was filed in February 2022 after Gierl sought two year's worth of records in November 2021 related to three email distribution lists and emails sent to those lists, and the district refused to turn over the requested records. He then modified his request to six months.

In October 2022, Ozaukee County Circuit Court Judge Steven Cain ruled in Gierl's favor before the Mequon-Thiensville School District appealed that decision.

What did the appellate court say in its ruling?

In its ruling, the appellate court disagreed with the district's argument "that the circuit court erred by determining it improperly withheld the email messages."

"It contends that its initial refusal to provide Gierl with the email messages was rendered moot when Gierl amended his request to a six-month time period and the District provided him with those requested messages. We disagree," the court said in its ruling.

"The District did not provide Gierl with the requested email messages until after Gierl petitioned for a writ of mandamus ... Stated another way, by the time Gierl filed his petition, the alleged violations had occurred," the court said in its ruling.

The court of appeals also said it agreed with the circuit court's decision that the district provided insufficient reasons for refusing to provide Gierl with the email addresses.

"The District denied Gierl’s request by stating that Gierl’s interest was not implicated in the records; that there was no subject-matter limitation on the request; that the request would likely require the production of voluminous records; that it would be burdensome for the District to review the records for confidentiality concerns; and that there was ongoing litigation. We conclude that these reasons, without more, are legally insufficient to justify a refusal to withholdthe records in this case," the court's ruling said.

The court also said the district did not support its assertion that Gierl's request for emails sent to the three specific distribution lists for a certain period of time was insufficient under state statute.

"There is also no indication that the District engaged in any balancing test in its denial, and no specific legal or policy basis was given that suggested the records were protected from disclosure. The District’s stated reasons in its denial for withholding the records do not outweigh the strong public policy in favor of disclosure," the court said.

What was the result of the first open records lawsuit Gierl filed?

This was not the first open records suit Gierl filed against the school district. In August 2020, Gierl filed a suit seeking parent email addresses related to a webinar titled "The Talk: A Necessary Conversation on Privilege and Race with Our Children." Cain ruled in Gierl's favor in October 2021.

The district filed an appeal in December 2021, but the Court of Appeals District II denied the appeal in December 2022.

That led to the district appealing to the Wisconsin Supreme Court, which also denied the district's appeal, in March 2023.

Contact Alec Johnson at (262) 875-9469 or alec.johnson@jrn.com. Follow him on Twitter at @AlecJohnson12.

This article originally appeared on Milwaukee Journal Sentinel: Court of Appeals denies Mequon-Thiensville's appeal of open records lawsuit