?13th a. matte} easel? at STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY KATHLEEN METER LOUNSBURY alk/a KATY LOUNSBURY 6502 Grand Teton Plaza, Ste. 202 - gs: Madison, WI 53719 - - - . WY 2 THE PROGRESSIVE, INCMain St . DANE COUNTY CERCUIT COURT Madison, WI 53703 and JUD LOUNSBURY (:10 THE PROGRESSIVE 409 E.- Main St. Madison, WI 53703, Case Nd: - Plaintiffs, . Case Ciassi?cation: OTHER I EXTRAORDINARY Staf WISCONSIN DEPARTMENT OF ADMINISTRATION, NATHAN E. SCHWANZ, MICHAEL G. HEIFETZ, PATRICIA PATTI REARDON, SCOTT WALKER, and SCOTT NEITZEL, 101 Wilson St, THIS IS AN COPY Madison WI 53703? - ORIGINAL DOCUMENT FILED WETH THE DANE COUNTY CLERK-OF CIRCUIT COURT, - Defendants. CARLO ESQUEDA CLERK a? CIRCUIT SUMMONS THE STATE OF WISCONSIN, To each; person named as a Defendant: You are hereby notified that the Plaintiffs named above have filed a lawsuit or other legal action against yeu. The Complaint, which is attaChed, states the nature and basis of the legal action. Within forty-?ve (45) days of receiving this summons, you must respond with a written answer, as that term is used in Chapter-802 of the Wisconsin Statutes, to the Complaint. The Court may reject or disregard an answer that does not follow the requirements of the statutes. The answer must be sent or delivered to the-Court, whose address is 215 Hamilton St., Room 1000, Madison, Wisconsin, 53703, and to April Rockstaad Barker, attorney for the Plaintiffs, whose address is 16655 West Bluemound Road, Suite 270, Breckfield, Wisconsin, 53005. You may have anattorney help or represent you. If you. do not provide a proper answer within forty?five (45) days, the-Court may grant judgment against you for the award of money-or other legal action requested in the Complaint?, and you may lose your right to object to anything that is or may be incorrect in the Complaint, A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate-you own now for in the future, and may also be enforced by garnishment or seizure of property. Dated this??ay of May, 2015. Respectfully submitted, ?(April Rockstead Barker State Bar 1026163 abatker?3be~lawcom Attorneys for Plaintiffs SCHOTT, BUBLITZ ENGEL s.c. 16655 W. Blue-mound. Road, Suite #270 Brookfield, Wi 53005 (262) 827-1700 (262) 827-1701-Fax STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY KATHLEEN METER LOUNSBURY 6502 Grand Teton Plaza, Ste. 202 Madison, WI 53719 I MAY 3 i? 25% THE PROGRESSIVE, INC. - DANE metastasis 30:23:97? 409 E. Main St. - - Madison, WI 53703 and JUD LOUNSBURY THE PROGRESSIVE 409 E. Main St. - Madison, WI 53703, . Case No.: Plaintiffs, . Case Classification: OTHER EXTRAORDINARY WRIT WISCONSIN DEPARTMENT OF ADMINISTRATION, NATHAN E. SCHWANZ, MICHAEL G. HEIFETZ, Tqu ,3 AN OF PATRICIA REARDON alk/a PATTI REARDON, QPEINALDOCUMENT mg DANE SCOTT WALKER, and SCOTT NEITZE L, . CLERK OF QIRGUIT coast, 101 E. Wilson St Madison, WI 53703, I CARLO ESQUEIJA DIBfendantS- I - CLERK OF CIRCUIT COURT COMPLAINT PUBLIC RECORDS This is an action toenforce Wisconsin?s Public Records Law, Wis. Stats. ??19.3i? 19.39. State law declares it the public policy of this state that every citizen is presumptively entitled to complete access to the records of state and local government. Plaintiffs, KATHLEEN METER LOUNSBURY a/k/a KATY LOUNSBURY, THE PROGRESSIVE, INC, and JUD LOUNSBURY, bytheir attorneys, Schott, Bublitz_& Engel 3.0., as and for their claims under Wis. Stats. ?19.37, allege that: FACTUAL ALLEGATIONS 1. Plaintiff KATHLEEN METER LOUNSBURY is an adult resident of the State of Wisconsin and an attorney licensed in the State of Wisconsin whose principal buSiness address is 6502 Grand Teton Plaza, Ste. 202, Madison, Wisconsin, 53719. 2. Plaintiff THE PROGRESSIVE, INC. (referenced hereafter as is a media corporation organized and existing under the laws of the State of Wisconsin with its principal place of business at 409 E, Main Street, Madison, WWisconsin, 53703. THE PROGRESSIVE publishes a political magazine based out of Madison, Wisconsin. I. I I I 3. Plaintiff JUD LOUNSBURY is an adult resident of the State ot-Wisconsin and a reporter and. columnist for THE PROGRESSIVE. I 4. . Defendant WISCONSIN DEPARTMENT OF ADMINISTRATION is a public agency of the State of Wisconsin-with its prinCipal-o?ices at 10?] E. Wilson Street, Madison, Wisconsin, and is an ?authority? as that term is defined in Wis. Stats. ?19.32(1) and used in the Public Records Law. 5. Defendants NATHAN E. SCHWANZ, MICHAEL G. HEIFETZ, PATRICIA REARDON ark/a PATTI REARDON SCOTT WALKER, and SCOTT NEITZEL are officials, employees or other authorized legal representatives of the DEPARTMENT OF ADMINSITRATION and upon information and belief are or have acted as ?legal-custodians" of one or more of the records at issue in this action under Wis. Stats. ?19.33 and as that term is used in the Public Records Law. BACKGROUND AND RECORDS REQUEST s. On 0r about February 6, 2015, Plaintiff KAT-Y LOUNSBURY requested in writing, via electronic mail, that the DEPARTMENT OF ADMINISTRATION, NATHAN E. SCHWANZ and MICHAEL G. HEIFETZ produce for inspection the following records: a . all records, which either of you sent, received, or created anytime between October 1, 2014 and February 3, 3015, and which have anything to do with the language contained in sec. 36.01 of the Wisconsin Statutes, including any discussions or proposals regarding whether that language should be _changed. - This request includes but is not limited to: Emails from both official and personal accounts Handwritten notes Word documents Text messages Voicernail messages Social media exchanges Plaintiff KATY LOUNSBURY submitted the records request after consultation with JUD LOUNSBURY and in an attempt to obtain records that JUD LOUNSBURY could review and analyze for prospective commentary for THE PROGRESSIVE. A true and correct copy of the written request appears in the document attached hereto as Exhibit 1. 7. Between February 6,2015, and May 8, 2015, Plaintiff KATY LOUNSBURY correSponded by e?mail with the WISCONSIN DEPARTMENT OF ADMINISTRATION to request updates concerning thestatus of the to her request. The Wisconsin Public Law declares that providingthe public with information about the activities of government is an ?essential function of a representative government and an integral 3 part of the- routine duties of officers and employees whose responsibility it is to provide such information.? Wis. Stats. ?19.31. Contrary to the letter-and spirit of this declaration of policy, the WISCONSIN DEPARTMENT OF ADMINISTRATION, by PATTI REARDON, Program and Policy Analyst, described to Plaintiff KATY LOUNSBURY- the WISCONSIN DEPARTMENT OF approach to timeliness in fulfilling records requests as follows: . . . the time it takes to respond to each request will vary depending on the nature of the requeSt, staff available to locate and prepare the particular records, the volume of other pending requests, etc. It is not possible, nor are we required, to impose a deadline by which we must provide you with the requested records. .At the time of the-communication toPIaintiff KATY LOUNSBURY that included the above statements, it had been nearly two months since Plaintiff KATY LOUNSBURY submitted the request. 8. On-?or about May 8, 2015, more than 90- days after Plaintiff KATY LOUNSBURY sent the records request, the WISCONSIN DEPARTMENT OF ADMINISTRATION, by and through its Chief Legal Counsel and on letterhead bearing the names of Defendants SCOTT WALKER and SCOTT NEITZEL, denied Plaintiff?s request with respect to certain records. Among other things, the WISCONSIN DEPARTMENT OF ADMINISTRATION, on its behalf and on behalf of the individually~ named Defendants, asserted that: . . some of the materials that we are withholding consist of preliminary analysis and deliberations created and exchanged by and among DOA and Governor?s, office employees in preparation of the Governor's budget, before the budget legislation was introduced in the legislature. By law, the Governor is responsible for. the state?s biennial budget, and the Department of Administration is mandated to prepare the budget under the direction of the Governor. . . . A candid, complete, and creative evaluation of the state?s finances within DOA and within the Governor?s office is inherent to the development of the Governor?s executive budget. Making these internal discussions just as open to disclosure as the-final version of the budget would inhibit the free exchange of ideas, opinions, proposals, and recommendations among those involved in deciding what to include in the final legislation. Disclosure of this narrow-category of records limited to - discussions within DOA, within the Governor?s office, and between the two - would discourage frank internal discussion and harm the quality of the final-executive decision. Further, it would disincentivize the free exchange of emails and written documentation necessary to hone the precise language and calculations that are key to proper budget development. Without a doubt, this would significantly inhibit the efficiency and efficacy of the employees who develop the detailed language and financial calculations for the budget. In addition, disclosure would risk public confusion as a-result of publishing non~final proposals, which may not ultimately have been adopted. . I DEPARTMENT OF ADMINISTRATION further claimed in its response letter that public policy recognized by the federal Freedom of Information Act supports State officials' denial of public access to their communications about state budget legislation. It also claimed that the public?s ?limited? interest in records relating to state budget legislation essentially includes only a budget as uitimately passed and whatever press releases officials choose to release to explain and justify a budget after the fact. A true and correct copy at the substance of the response letter denying access to certain records is attached hereto as Exhibit 2. 9. The WISCONSIN DEPARTMENT OF ADMINISTRATION also, upon information and belief, withheld documents as ?notes? or ?drafts? based on an interpretation of Wis. Stats. ?19,32 that is contrary to the definition of ?record? and failed and refused to provide access to copies of e?mail messages and other messages responsive to Plaintiffs? request. 10. To date, the WISCONSIN DEPARTMENT OF ADMINISTRATION has not provided Plaintiffs with access to the records that it withheld for the alleged reasons described above. CLAIMS 11. Plaintiffs reallege and reincorporate herein the allegations of paragraphs 1 through 10, above. 12. Under Wis. Stats. ?19.31, it is the declared public policy of this state that every citizen is entitled to the greatest possible information regarding the affairs of government. Section 19.31, Wis. Stats, affirms the presumption of complete public access to governmental records, consistent with the conduct of governmental business. The statute provides that ?[t]he denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.? This is not an excep?onalcase. 13. Defendants have violated the Public Records Law and Wis. Stats. ?1 9.37( 1) by withholding and denying access in response to Plaintiffs? records requests. Defendants? reasons, as stated, for withholding the records violate the law because, among other things, (1) Defendants improperly rely upon public policy rationales as ?blanket exceptions" to disclosure, and failed to conduct a record-by-record review, as required; (2) Defendants purport to apply the results of an alleged public policy balancing analysis that neither considers nor determines Whether the facts present an ?exceptional case? against disclosure; and (3) Defendants rely upon rationales that, on their face, do not provide a basis for nondisclosure of the records under Wisconsin law. To the contrary, the rationales asserted by Defendants are patently inconsistent with the letter and spirit of Wisconsin?s Public Records Law, the Wisconsin Constitution, and 'Wisconsin?s common law. it is manifestly apparent from the Defendants? denial letter that the records that the Defendants withheld are quintessentially. the kinds of records that the Public Records law requires be made available to the public-and the press in response to records requests. Put simply, Defendants? rationales turn on their heads basic and fundamental principles of open and Democratic government. 14. Defendants? actions have caused and will continue to cause injury to the Plaintiffs in that they deprive them and the rest of the public of their rights under the Public Records. Law. I RELIEF REQUESTED WHEREFORE, the Plaintiffs demand a judgment of mandamus against the Defendants pursuant to Wis. Stats. I Compelling the Defendants to permit the Plaintiffs forthwith to inspect and copy the requested records; 2. Declaring the Plaintiffs? rights and limiting the Defendants? conduct with respect to the requested records; 3. Awarding Plaintiffs their reasonable attorneys? fees under Wis. Stats. 4. Awarding punitive damages as a result of the Defendants? willful violations of the Public Records law; and 5. Awarding such other relief as the Court deems appropriate. L. Dated this day of May, 2015. April Rockstead Barker State Bar 1026163 Attorneys for Plaintiffs SCHOTT, BUBUTZ 8: ENGEL 3.0. 16655 W. Bluemound Road, Suite #270 Brook?eld, WI 53005 (262) 827-1700 (262) 827-1701~Fax 5%8 Reardon, Patricia A 00A I Frum: Murray, Gregory DOA Sent: . Friday, February 06, 2015 12:49 PM - To: Reardon, Patricia A DOA - Subject: FW: Open record request From: Heifoaftz, Michaef DOA Sent: Friday, February [36, 21315 8:45 AM To: Murray, Gregory DOA Subject: FW: Open record request Frown: Katy Lounsbury fmaiim:klounsburv?ehikatawnon? Sent: Friday, February 06, 2015 8:18 AM To: Schwanz, Nathan Heifetz, Michael DEM Cc: Sud Meter Lounsbm?y Subject: {men record request Dear Messrs. Schwanz arid Heife?czi This is an open record requegt. I would copies of all records, which either 0f you sent, received, or created anytime between October 1, 2014 and February 8, 3015, and which have anything to do with the language contained in 8G0. 36.01. of the Wisconsin. Smtutsag} inclmiing any discuasinns 01' proposals. I regarc?zing whether that language should be changed. - This requests includes but; is 110%, limited to: Emails from both of?cial and personal gccounts - 3 fiandwritten notes; - Word. documents Text messages Voicema? messages Social media exchanges If you believe any records which would be respansive to this request should not be mleaseti, 1331-22159. iaientify those 178002115 by descripi?on, of creation, and custodian of the record, and sham the basis for withholding the record. I would appreciate if you would. confirm receipt ofthis email. .. Thank you, Katy Lounsbury SCOTT WALKER GOVERNOR A. NEITZEL SECRETARY Of?ce of the Smst'ary Past Of?ce Rm 7364- 0F Madismx, W1 S3707-7864- ADMINISTRATION ?rearms?? May 8, 2015 Katy Lounsbury Ei?ks, Bero?Lehmann 83 Lounsbury, SIZE. Dear Ms. Lounsbury: This is in response to your pubiic recurds request. for records sent, received, or crsated by Nathan $0111me or Michael Heifstz between October 1, 2014 and. February 3, 2015 rslatsc?i to the ianguags in 36.01, Wis. Stats. With this letter, we are providirzg records responsive to your request. We are waivizlg our standard $0,225 per page photocopy fee. We have withheld or redactsc'i the following from the records we compiled. - We have removed drafts, notes, preliminary compum?ons, and ?lm materials that fall outSide-ths definition of ?record? as set forth in. 1932(2), Wis. Stats! A150 note, some of the 'matctials that we are wi?ahoiding consist of preliminary analysis and delibera?tis?s created and. exchanged by arld among DOA and Governor?s office employees in. prsparatinn of the Governor?s budget, Easihre the budgst legisiatisn was intmduced in the isgislatum. By law, the Governor is for the state?s biennial budget, anti the of Administration is mandatsd to prepare the budget under the direction of the Governor. See Wis Stats Iii-candid, complete, and creative evaluatian (if the stam?s ?nances withirr DOA and-within the Governor?s of?ce is inherent to the af?ne Governor?s executive budget Making mess internal discussions just as open to disclosure as the final version of the budget would inhibit the free excharlgs of ideas, opinions", proposals, and recqmmendations among those involved.- .in. deciding what to include in the ?nal legislatiozl. Disclosure of this nan?ovv category of to discussions within 301%, within. the Governor?s of?ce, and between the: two~~wou1d discourage frail}: internal discussion and. harm me quality of. the ?ns} decision. Further, it wOuld the free. exchange of smaiis and written documentation necessary to horns the prscise language and calcuiations that are-key to proper budget developmmt, Without a doubt, this would signi?cam?y inhibit the ef?ciency and ef?cacy of the ample},er who develop tbs: detailed language- z-md ?nancial calculations for the budget. In addition, disclosure: would. risk public Con?lsjon as a. resuit of pubiishmg non??.nal proposals? which. may not ultimately have been} adopted. WISCONSIN IS OPEN FOR BIEINESS I-I?ia?cmla?ingm! May 8, 2015 Page 2 of 2 The public interests supporting con?dentialiqr have. long been nationaliy recognized,-inc1uding in federal law. See Freedom of Infomation Act 5 USC Bureau ofNationaE Affairs v. UCS. Depot-Imam ofJuszioe, 742 F.2d 1484 (DC. Cir. 3.984). Conversely, the public interest: in accessing these particuiar records is limited. A11 legislation is publicly available once it is introduced, and numerous documents are produced and. released. to the public explaining and justifying the Speci?cs of the executive budget. Thus, pursuant to the required. balancing test, we have concluded that the public interest in protecting the quality of the execuiive decisionenaking process and maintaining the ef?ciency and efficacy of the budget writing process outweighs the public interest in the release of these materials. Further, the public records law exempts from public disclosure crafts, notes, prelin?nery computations, and. like materials prepared for the. originator?s persona} use or prepared by the originator in the name of a person. fore/them. the originator is working. Wis. Stats. 1932(2), These preliminary analyses and deiibcretions are ?iike materials? similar to drafts, notes, and. preliminary computations prepared by individuais working for the Governor on creation of the Governor?s biennial budget. Release of these preliminary materials would be contrary to the conduct of government business, running counter to cxciusions and to the declaration of poi-icy in. 19.31, Wis. Stats. - Note that we have not commemications with. representatives of UW System. or the Legislative Reference. Bureau under this reasoning We are providing these communications because it is our understanding that they are already publican available. We are required to inme you that to the extent this responseamounts to a partial denial of a written request for records, it is subject to renew by mandamus under Wis. Stats, or upon application to the Attorney General or a District I Attorney. . Sincerely, Greys r. . - Chief