STATE OF WISCONSIN

CIRCUIT COURT
BRANCH ____

DANE COUNTY

CENTER FOR MEDIA & DEMOCRACY
520 University Avenue, Suite 260
Madison, WI 53703,
COMPLAINT
Plaintiff,

Case No.:
Code No.:

v.

__________
30952

LEAH VUKMIR
State Senator
Room 131 South
State Capitol
P.O. Box 7882
Madison, WI 53707
Defendant.
COMPLAINT FOR MANDAMUS

The Center for Media and Democracy (hereinafter “CMD”), allege
as their Complaint against Defendant, Senator Leah Vukmir, as follows:
1.

CMD brings this action for mandamus under Wis. Stat

§19.37(1)(a), requesting that this court order Defendant to release public
records that Defendant has heretofore failed to release pursuant to CMD’s

1 
  

 written request under the public records law, and assess appropriate
damages, Wis. Stat. §§ 19.31-19.39.
2.

Under Wisconsin law, “all persons are entitled to the

greatest possible information regarding the affairs of government and the
official acts” of their representatives, and providing such information is
“an essential function of a representative government.” Wis. Stat. § 19.31
(Declaration of Policy). As the Wisconsin Supreme Court has observed, “If
Wisconsin were not known as the Dairy State it could be known, and
rightfully so, as the Sunshine State. All branches of Wisconsin government
have, over many years, kept a strong commitment to transparent
government.” Schill v. WI Rapids School Dist., 2010 WI 86 ¶ 1, 327 Wis. 2d
572, 580 ¶1 (2010) (Abrahamson, C.J., lead opinion). Defendant has failed
Wisconsin’s clean government traditions by refusing to comply with her
responsibilities under the public records law, and by apparently accepting
assertions from a private organization that its correspondence with
legislators should not be subject to Wisconsin’s sunshine-in-government
laws. 
  

2 
  

 FACTUAL 
  ALLEGATIONS
3.

CMD is a nonprofit, nonpartisan organization engaged in

investigative reporting and research, with headquarters located at 520
University Avenue, Suite 260, Madison, WI 53703.
4.

CMD is a “requester” as that term is defined in Wis. Stat. §

19.32(3) and as used in throughout Wisconsin’s public records law, Wis.
Stat. § 19.31-19.39.
5.

Defendant Senator Vukmir is an “authority” as that term is

defined in Wis. Stat. § 19.32(1) and as that term is used throughout the
public records law, § 19.31-19.39, and has a legal duty to disclose records
in response to a lawful request.
6.

On April 5th, 2013, CMD Research Director Nick Surgey

submitted a public records request to Defendant’s office for all records
received “directly or indirectly from the American Legislative Exchange
Council (ALEC)” between March 15th and April 5th, 2013, relating to its
upcoming task force meeting held May 2nd & 3rd, 2013, in Oklahoma
City, OK, encompassing “all emails sent or received on official state email
accounts, as well as other email accounts that have been used for official
business.” ALEC has typically sent meeting agendas and proposed model
legislation to its legislative members thirty-five days in advance of its

3 
  

 meetings, and this request sought the records included in these “35 Day
Mailings.” The request clarified it:
“[s]pecifically . . . includes (but is not limited to) any
ALEC task force 35-Day Mailing / Task Force Mailing
(or similar) materials. It is understood that these
materials have in the past been provided by ALEC as
downloadable files via a website: box.com.”1
7.

The requested documents are “records” as the term is

defined in Wis. Stat. § 19.32(2) and as used throughout the Public Records
law, Wis. Stat. § 19.31-19.39. CMD has previously received hundreds of
pages of such materials through public records requests to Wisconsin
legislators, including Defendant.
a.

The content of the meeting agendas, handouts, model

legislation and other requested documents are indisputably related
to official government business. ALEC is an organization through
which state legislators meet with corporate representatives (many
of whom are registered lobbyists) to adopt “model” legislation, and
ALEC advocates for the introduction and passage of that model
legislation in Wisconsin and elsewhere. Wisconsin legislators are
members of ALEC only by virtue of their status as a state legislator,
and they attend ALEC meetings and correspond with ALEC in
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
1 
  Request 
  attached 
  as 
  Exhibit 
  A. 
  

4 
  

 their official capacity as Wisconsin legislators. See Exhibit B. 2 The
Government Accountability Board has held that legislators attend
ALEC meetings primarily on behalf and for the benefit of the state.
See Exhibit C. The ALEC-related documents sought by plaintiffs are
clearly related to official government business; indeed, ALEC itself
has told the State of Wisconsin, through the Government
Accountability Board, that its interactions with state legislators are
related to official government business. See Exhibit B.
b.

Meeting agendas, task force materials, and other documents

distributed to legislators via an external link to a box.com internet
dropbox are still “records” subject to disclosure under the public
records law. It is the content that determines whether a document
is a "record," not medium, format, or location. OAG 1-06-09
(December 23, 2009), at 2.1. "In determining whether a document is
a record under Wis. Stat. § 19.32(2), the focus is on the content of
the document. To be a record under § 19.32(2), the content of
the document must have a connection to a government

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
2 
  Letter 
  from 
  ALEC 
  to 
  Wisconsin 
  Government 
  Accountability 
  Board, 
  May 
  27, 
  2010 
  

(discussing 
  how 
  state 
  legislators 
  “attend 
  ALEC 
  conferences 
  on 
  behalf 
  of 
  and 
  for 
  the 
  benefit 
  of 
  
the 
  state”). 
  CMD 
  has 
  disputed 
  some 
  of 
  the 
  other 
  claims 
  ALEC 
  has 
  made 
  in 
  this 
  letter, 
  as 
  noted 
  
in 
  the 
  Exhibit 
  B 
  cover 
  page. 
  

5 
  

 function." Schill, 2010 WI 86, ¶ 140, 327 Wis. 2d at 632 ¶ 140
(Abrahamson, C.J., lead opinion).
c.

The request is not for e-mails of a purely personal nature, nor

is it for e-mails relating to campaign activity (especially because
ALEC, as a charity organized under Section 501(c)(3) of the Internal
Revenue Code, is legally prohibited from engaging in electoral
activity).3
8.

On April 25, 2013, Senator Vukmir’s office responded:
Upon receiving your Email formally
requesting the records specified above, Senator
Vukmir and staff conducted the requisite
search. After completing the requested search
for records relating to the upcoming task force
meeting in Oklahoma City, Senator Vukmir’s
office does not have any documents that are
responsive to your request.4

9.

On May 6, 2013, after the Oklahoma City meeting, CMD

Research Director Nick Surgey submitted another public records request
to Defendant’s office for:
“access to and a copy of all records, including
but not limited to emails, minutes, agendas,
draft legislation, draft resolutions, handouts,
and correspondence, received at or pertaining
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
3 
  See 
  I.R.C. 
  § 
  501(c)(3): 
  such 
  an 
  organization 
  “does 
  not 
  participate 
  in, 
  or 
  intervene 
  in 
  

(including 
  the 
  publishing 
  or 
  distributing 
  of 
  statements), 
  any 
  political 
  campaign 
  on 
  behalf 
  of 
  
(or 
  in 
  opposition 
  to) 
  any 
  candidate 
  for 
  public 
  office.” 
  
4 
  See 
  Exhibit 
  A. 
  

6 
  

 to the American Legislative Exchange Council
(ALEC) 2013 Spring Task Force Summit, held
in Oklahoma City, OK, on 2-3 May, 2013.
Please note that this request includes all emails
sent or received on official state email
accounts, as well as other email accounts that
have been used for official business.”5
10.

In response to this request, Defendant released nine pages of

records, which CMD retrieved from the Senate Chief Clerk’s office on May
21.6 Defendant did in fact attend the meeting, and the majority of the
records were emails between Defendant and ALEC staffers coordinating
times to get together at the ALEC meeting. However, Defendant did not
release any of the requested meeting agendas, proposed legislation or
resolutions, or handouts from the meeting.
11.

Through other sources, CMD was able to obtain a limited

number of meeting agendas and proposed model bills from the Oklahoma
meeting. At the bottom of those documents was the following disclaimer:
"Because this is an internal ALEC document,
ALEC believes it is not subject to disclosure
under any state Freedom of Information or
Public Records Act. Should you want to make
copies, or if you receive a request for disclosure
of this or any other ALEC document under
your state's Freedom of Information or Public
Records Act, please contact Michael Bowman,
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
5 
  Request 
  attached 
  as 
  Exhibit 
  D. 
  
6 
  Records 
  attached 
  as 
  Exhibit 
  E. 
  

7 
  

 Senior Director, Policy and Strategic
Initiatives," and listing his phone number and
email address.7
12.

Defendant is on the ALEC National Board of Directors, is the

ALEC State Chair for Wisconsin, and is a member of the ALEC Health and
Human Services Task Force. Documents obtained from a separate public
records request for text messages suggest Defendant sponsored model
legislation that was presented to a task force at the Oklahoma ALEC
meeting, and her proposal was adopted. See Exhibit G.8
13.

Given Defendant’s leadership role in the organization and

the fact that she both attended the Oklahoma meeting and sponsored
legislation, it is not credible to believe that Defendant did not have a
single document in her or her office’s custody or control in advance of the
meeting, and had no meeting agendas, handouts, proposed bills, or other
records in her or her office’s custody or control after the meeting.
14.

Under Wisconsin’s public records law, an authority may not

destroy a record after receipt of a request for that record until at least sixty

 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
7 
  See 
  Exhibit 
  F 
  (containing 
  examples 
  of 
  a 
  model 
  bill 
  and 
  a 
  meeting 
  agenda 
  from 
  the 
  May 
  2013 
  

meeting 
  with 
  this 
  disclaimer.) 
  
8 
  On 
  May 
  3, 
  at 
  the 
  conclusion 
  of 
  the 
  task 
  force 
  meetings 
  scheduled 
  for 
  that 
  day, 
  Vukmir 
  
texted 
  Christie 
  Herrera, 
  former 
  head 
  of 
  the 
  ALEC 
  Health 
  and 
  Human 
  Services 
  Task 
  Force, 
  
asking 
  “How 
  did 
  it 
  go?” 
  Herrera 
  replied, 
  “Passed 
  unanimously. 
  Great 
  job 
  Madame 
  Sponsor!” 
  

8 
  

 days after denial or until related litigation is completed. Wis. Stat.
§ 19.35(5).
15.

ALEC’s effort to wrap the documents it distributes to

Wisconsin legislators in a cloak of secrecy is not recognized as an
exception to Wisconsin’s public records law. The law presumes that all
documents that meet the definition of “records” in Wis. Stat. § 19.32(2) are
subject to disclosure, unless they meet a specific exception. Hathaway v.
Joint School Dist., 116 Wis. 2d 388, 397 (1984). The legislature has declared
that the public records law “shall be construed in every instance with a
presumption of complete public access, consistent with the conduct of
governmental business.” Wis. Stat. § 19.31 (Declaration of Policy). “Public
policy favors the right of inspection of public records and documents, and
it is only in the exceptional case that inspection should be denied.” State ex
rel. Youmans v. Owens, 28 Wis. 2d 672, 683 (1965).
16.

There is no provision in Wisconsin law allowing private

organizations to create their own exceptions to the public records statutes.
17.

Additionally, records that may have been distributed to

Defendant via a link to an external internet dropbox are still subject to
disclosure under the law. "[T]he policy underlying the public records law
is not so ephemeral and its mandates are not so easily circumvented" by a

9 
  

 digital sleight-of-hand. Schill, 2010 WI 86 ¶ 156, 327 Wis.2d at 637,
(Bradley, J., concurring).
18.

If an authority believes that particular documents responsive

to a request are not subject to release under the public records law, they
are required to tell the requester what part of the law they believe entitles
them to deny that part of the request. Wis. Stat. § 19.35(4)(a). CMD asked
specifically for meeting agendas, model bills, and handouts, and in the
May 5 request further asked Defendant to “please acknowledge if any
materials from the ALEC conference are not considered to be a public
record.” Defendant neither cited a statutory exception nor any other
justification for not releasing the requested records.9
19.

On review of a writ of mandamus, it is not the court’s role to

hypothesize or consider reasons not asserted by the records custodian’s
response. If the custodian fails to state sufficient reasons for denying the
request, the court shall issue a writ of mandamus compelling disclosure of
the requested records. Osborn v. Bd. of Regents, 2002 WI 83, ¶ 16, 254 Wis.
2d 266, 283 (2002).
 
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
  
9 
  In 
  its 
  disclaimer, 
  ALEC 
  asserts 
  that 
  its 
  materials 
  are 
  subject 
  to 
  copyright, 
  but 
  Defendant 
  did 
  

not 
  cite 
  the 
  copyright 
  exception 
  when 
  refusing 
  to 
  disclose 
  the 
  requested 
  records. 
  In 
  any 
  case, 
  
the 
  copyright 
  exception 
  is 
  to 
  be 
  narrowly 
  construed, 
  and 
  does 
  not 
  apply 
  to 
  materials 
  such 
  as 
  
those 
  requested 
  by 
  plaintiffs, 
  which 
  fall 
  under 
  the 
  “fair 
  use” 
  exception 
  to 
  federal 
  copyright 
  
law. 
  Zellner 
  v. 
  Cedarburg 
  Sch. 
  Dist., 
  2007 
  WI 
  53 
  ¶¶ 
  28-­‐30, 
  300 
  Wis. 
  2d 
  290, 
  304-­‐06, 
  731 
  
N.W.2d 
  240 
  (2007). 
  

10 
  

 20.

Wisconsin’s proud traditions of open government are

undermined by private efforts to keep the basic operations of government
secret, and made worse when elected officials are complicit in these
efforts. As the legislature declared in enacting the public records law, “all
persons are entitled to the greatest possible information regarding the
affairs of government,” and such transparency is crucial to guarantee an
accountable and fully representative democracy. Wis. Stat. § 19.31.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff CMD requests that the Court grant the
following relief pursuant to Wis. Stat. §§ 19.31-19.39 and Wis. Stat. §
806.04:
a. Allow additional legal argument, as necessary, after the
Defendant has answered the Complaint;
b. Order the Defendants to provide copies of the requested records
to CMD;
c. Award CMD its actual costs and damages under Wis. Stats. §
19.37(2)(a);
d. Assess whether Defendants acted in a willful or intentional
manner, and arbitrarily and capriciously denied or delayed

11 
  

 response to the request from CMD, and assess appropriate
damages under Wis. Stats. §§ 19.37(2)(b) and (3), and;
e. Order other such relief as the Court deems appropriate.

Dated this 6th day of June, 2013.

______________________________
Brendan Fischer, SBN 1089027
Attorney for Plaintiff
Mailing Address:
520 University Ave Ste 260
Madison, WI 53703
Telephone: (608) 260-9713
Facsimile: (608) 260-9714
Brendan@prwatch.org

12