A judge said a former state official violated the state's public records law. Here's why he said he could not impose any penalties.

MADISON - A Dane County judge cited a recent Supreme Court decision as the reason he would not hold accountable a government official who refused to turn over records when requested.

Judge Everett Mitchell dismissed the case against Frederick Prehn last week, saying in his ruling that Prehn absolutely violated state open records laws.

"There is no dispute that Prehn dishonored this commitment to transparent government: there is no dispute that he delayed access to the records of his official acts as a government official for over one year and there is no dispute that he had no lawful reason to do so," he wrote in his order.

"Prehn's explanations — to blame other government officials, or to blame his own inefficient recordkeeping, or to blame unfamiliarity with technology — do not excuse him from the 'routine duties of officers and employees whose responsibility it is to provide such information.'"

Mitchell, who was a candidate on Tuesday's primary ballot for Supreme Court, said the decision by the court in a case brought by a Waukesha group Friends of Frame Park made it impossible to penalize Prehn for delaying the release of records. The precedent set by that decision required him to "reward Prehn for strategically freezing out the public's access to records."

The Friends of Frame Park decision last year changed the definition of what it means to prevail in a lawsuit to obtain public records from a government office or agency — making it harder for the party bringing the suit to be reimbursed for attorney fees after records are returned.

In that case, the park group sued the City of Waukesha for withholding a draft contract related to efforts to bring a summer league baseball team to the city. The court ruled that because the city produced the records before a judge took action on the lawsuit the group could not recover fees.

In the Prehn lawsuit, Midwest Environmental Advocates did not receive attorney fees.

Bill aims to change ruling

The case against Prehn was filed by Midwest Environmental Advocates in a bid to obtain communications between Prehn and other members of the Natural Resources Board, which sets policy for the Department of Natural Resources. The group had previously obtained email records as a part of its request but was told no text messages existed, a fact that MEA disputed because it had obtained messages sent by Prehn as a part of records released by another public official.

Prehn, a Wausau dentist and gun store owner, refused to step down for nearly two years after the expiration of his term, even as Evers appointed his successor. Prehn's decision was upheld last year by the Wisconsin Supreme Court, which ruled that he could remain in his seat unless the governor could find cause to remove him. Prehn did eventually relinquish the seat at the end of December, allowing his successor, Sandra Naas, to take the seat in January.

Since 2021, when MEA brought the suit against Prehn, a number of text messages and emails have been made public, including some showing Prehn's collaboration with prominent Republicans, lobbyists and even former Gov. Scott Walker about his decision to overstay his term.

Public records advocates say not penalizing Prehn sets a dangerous precedent for other government officials.

"It gives an incentive to a custodian to not provide the record when asked for it and to wait until you're sued," said Bill Leuders, president of the Wisconsin Freedom of Information Council. "You can simply just provide the record after someone makes the extraordinary step of suing you and it all goes away. You don't have to pay any of their costs, and because of that, people are not going to be as willing to sue."

Lueders said that open records cases can rack up attorney fees in the hundreds of thousands of dollars in some cases and that being able to recover those costs is necessary to hold those in power accountable.

"It's just vital to (the law's) operation," he said. "Without that, you don't have any recourse when somebody breaks the law."

Without the lawsuit against Prehn, the public likely wouldn't have received information about why Prehn decided to overstay his term, said Peg Sheaffer, the director of communications & development for MEA.

"The public would not have learned about Prehn's coordination with politicians and lobbyists had Midwest Environmental Advocates not requested the records and filed a lawsuit to obtain them," she said in an email. "It shouldn't take a lawsuit to obtain public records. Members of the public should not have to bear the legal costs of holding public officials accountable for illegally withholding public information."

To address the impact of the Supreme Court ruling, lawmakers last week proposed a new bill that would lift the limitation on attorney fees if a judge determines the requester's lawsuit was a substantial factor in the record's release.

The legislation was introduced the same day Mitchell's decision was handed down by two Republicans, Sen. Duey Stroebel and Rep. Todd Novak. Lueders hopes that the bill will gain bipartisan support because transparency in government isn't a one-sided issue.

"I think that people should recognize that this is not a partisan issue, that this is a problem in the law that can be easily corrected and we need to correct it," he said. "This is a case where a conservative court rendered a decision that creates problems that conservatives and liberals are recognizing as a problem and are trying to fix."

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This article originally appeared on Milwaukee Journal Sentinel: Judge says a Supreme Court ruling tied his hands in open records case