Case 2018CV002560 Document 1 Filed 09-24-2018 Page 1 of 12 FILED 09-24-2018 CIRCUIT COURT DANE COUNTY, WI STATE OF WISCONSIN 2018CV002560 CIRCUIT COURT DANE COUNTY Honorable Richard G BRANCH __ Niess ____________________________________________________________________________ Branch 9 CENTER FOR MEDIA AND DEMOCRACY 122 W. Washington Avenue, Suite 830 Madison, Wisconsin 53703 ARN PEARSON 122 W. Washington Avenue, Suite 830 Madison, WI 53703 Plaintiffs, Case No. ________________ Case Code: 30952 v. WISCONSIN DEPARTMENT OF JUSTICE, 17 West Main Street Madison, WI 53703 Defendant. SUMMONS THE STATE OF WISCONSIN, To each party named above as a Defendant: You are hereby notified that the Plaintiffs named above have filed a lawsuit or other legal action against you. The complaint, which is attached, states the nature and basis of the legal action. Within 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 Dane County Courthouse, 215 S. Hamilton Street, Madison, WI 53703, and to Christa Westerberg, Pines Bach LLP, Plaintiffs’ Case 2018CV002560 Document 1 Filed 09-24-2018 Page 2 of 12 attorney, whose address is 122 West Washington Avenue, Suite 900, Madison, WI 53703. You may have an attorney help or represent you. If you do not provide a proper answer within 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 or in the future, and may also be enforced by garnishment or seizure of property. If you require the assistance of Auxiliary Aides or Services because of a disability, call (608) 266-4311 (TTY: Relay 7-1-1*) and ask for the Court ADA Coordinator. Dated this 24th day of September, 2018. PINES BACH LLP Electronically signed by: Christa O. Westerberg Lester A. Pines, SBN 1016543 Christa O. Westerberg, SBN 1040530 122 West Washington Avenue, Ste. 900 Madison, Wisconsin 53703 (608) 251-0101 (telephone) (608) 251-2883 (facsimile) lpines@pinesbach.com cwesterberg@pinesbach.com Attorneys for the Plaintiffs 2 Case 2018CV002560 Document 1 Filed 09-24-2018 Page 3 of 12 STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY BRANCH __ ____________________________________________________________________________ CENTER FOR MEDIA AND DEMOCRACY 122 W. Washington Avenue, Suite 830 Madison, Wisconsin 53703 ARN PEARSON 122 W. Washington Avenue, Suite 830 Madison, WI 53703 Plaintiffs, Case No. ________________ Case Code: 30952 v. WISCONSIN DEPARTMENT OF JUSTICE, 17 West Main Street Madison, WI 53703 Defendant. ______________________________________________________________________________ COMPLAINT ______________________________________________________________________________ Plaintiffs Center for Media and Democracy, by its attorneys, Pines Bach LLP, complains against Defendant Wisconsin Department of Justice as follows under the Wisconsin Open Records Law, Wis. Stat. § 19.31 et seq. (“Open Records Law”): Parties 1. Center for Media and Democracy (“CMD” or “Plaintiffs”) is a 501(c)(3) non-profit organization located in Madison, Wisconsin. CMD submitted an Open Records request to the Defendant and is a “requester” within the definition of the Open Records Law, Wis. Stat. § 19.32(3). 2. Arn Pearson is the Executive Director of Center for Media and Democracy, whose business address is 122 W. Washington Avenue, Suite 830, Madison, Wisconsin, Case 2018CV002560 Document 1 Filed 09-24-2018 Page 4 of 12 53703. On behalf of CMD, he submitted an Open Records request to the Defendant and is a “requester” within the definition of the Open Records Law, Wis. Stat. § 19.32(3). 3. The Wisconsin Department of Justice is a department created pursuant to Wis. Stat. § 15.25, under the direction and supervision of the attorney general, a constitutional office created by Wis. Const. art. V, § 1. The Department of Justice is an “authority” as that term is defined in Wis. Stat. § 19.32(1). Its designated records custodian under Wis. Stat. § 19.33 is Assistant Attorney General Paul Ferguson. Venue 4. Venue is proper under Wis. Stat. §§ 19.37(1) and 801.50(2) and (3). Facts 5. On August 3, 2018, CMD, by its Executive Director, Arn Pearson, made a request under the Open Records Law to the Department of Justice (“DOJ” or “Defendant”). The request sought: all Wisconsin Department of Justice internal records and communications involving the Offices of the Attorney General and the Solicitor General with respect to the Affordable Care Act. The scope of this request should include but is not limited to emails and attachments, both sent and received; draft records; notes; minutes; scheduling records; text messages; messages and materials exchanged or viewed through online applications, including but not limited to “The Briefing Room”; any other correspondence, internal and external; and all other records. .... Please exclude all press clips and newsletters. If your agency does not maintain these public records, please let me know who does and include the proper custodian's name and address. A copy of the August 3, 2018, request is attached hereto as Exhibit A. 4 Case 2018CV002560 6. Document 1 Filed 09-24-2018 Page 5 of 12 The request specified that the search may be limited to records between January 1, 2018, to the date of the request, August 3, 2018. 7. CMD received a letter from Mr. Ferguson, dated August 7, 2018, confirming receipt of the request and notifying it that the DOJ had initiated a review of DOJ’s files in order to respond to the request. The letter indicated that the “volume of emails required to be searched and the staff time and resources necessary for location and review will likely result in a longer response time,” and invited CMD to narrow the scope of its request. A copy of the August 7, 2018, correspondence is attached hereto as Exhibit B. 8. CMD received a second letter from Mr. Ferguson, dated August 20, 2018, indicating that the DOJ was denying CMD’s request for records “as insufficient pursuant to Wis. Stat. §§ 19.35(1)(h).” The DOJ claimed that the request was “excessively burdensome and not reasonably limited as to subject matter and time.” The letter stated that DOJ had performed a search for records that included emails for a variety of staff members from January 1, 2018, through August 3, 2018. This search located approximately 1,940 emails “that would require review to identify responsive records and any possible redactions prior to release.” The letter continued, “[t]he public records law does not impose such heavy burdens on a record custodian that normal functioning of the office would be severely impaired, and does not require expenditure of excessive amounts of time and resources to respond to a public records request.” A copy of the August 20, 2018, correspondence is attached hereto as Exhibit C. CAUSE OF ACTION: Defendant Has Violated the Wisconsin Open Records Law 9. Plaintiffs incorporates by reference all allegations set forth in the preceding paragraphs. 5 Case 2018CV002560 10. Document 1 Filed 09-24-2018 Page 6 of 12 Under Wis. Stat. § 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 and the official acts of government officers and employees. Wis. Stat. § 19.31 thus provides that the Open Records law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business,” and further, that “[t]he denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” 11. The Open Records Law provides that a requester has the right to inspect any record subject to extremely narrow and well-defined exceptions. Wis. Stat. § 19.35(1)(a). 12. The DOJ improperly withheld records after CMD’s written request for records. The August 3, 2018, request was reasonably limited both as to subject matter and length of time under Wis. Stat. § 19.35(1)(h). Responding would not have been excessively burdensome. 13. By denying Plaintiffs’ request for records under the Open Records law, Wis. Stat. § 19.35(1)(a), DOJ has deprived Plaintiffs and the public of their right to information under the law. RELIEF REQUESTED WHEREFORE, Plaintiffs requests that the Court grant the following relief pursuant to Wis. Stat. § 19.31 et seq.: 1. An order declaring that Defendant violated Wisconsin’s Open Records Law, Wis. Stat. §§ 19.31 et seq.; 2. A mandamus order directing Defendant to produce for the Plaintiffs a copy of the requested records without further delay, Wis. Stat. § 19.37(1)(a); 6 Case 2018CV002560 3. Document 1 Filed 09-24-2018 Page 7 of 12 An award to Plaintiffs for its reasonable attorneys’ fees, damages of not less than $100, Plaintiffs’ other actual costs, and punitive damages if the Court finds the Defendant arbitrarily and capriciously denied or delayed response to Plaintiffs’ requests, Wis. Stat. § 19.37(2), (3); and 4. Such other relief as the Court deems just and equitable. Dated this 24th day of September, 2018. PINES BACH LLP Electronically signed by: Christa O. Westerberg Lester A. Pines, SBN 1016543 Christa O. Westerberg, SBN 1040530 122 West Washington Avenue, Ste. 900 Madison, Wisconsin 53703 (608) 251-0101 (telephone) (608) 251-2883 (facsimile) lpines@pinesbach.com cwesterberg@pinesbach.com Attorneys for the Plaintiffs 7 Case 2018CV002560 Document 1 Filed 09-24-2018 Page 8 of 12 Aug 3, 2018 Paul M. Ferguson Office of Open Government Wisconsin Department of Justice P.O. Box 7857 Madison, WI 53707-7857 Dear Mr. Ferguson, Pursuant to the state open records law, Wis. Stat. § 19.31 et seq., I write to request access to and a copy of all Wisconsin Department of Justice internal records and communications involving the Offices of the Attorney General and the Solicitor General with respect to the Affordable Care Act. The scope of this request should include but is not limited to emails and attachments, both sent and received; draft records; notes; minutes; scheduling records; text messages; messages and materials exchanged or viewed through online applications, including but not limited to "The Briefing Room"; any other correspondence, internal and external; and all other records. The search may be limited to records between January 1, 2018 and the date of this request. Please exclude all press clips and newsletters. If your agency does not maintain these public records, please let me know who does and include the proper custodian's name and address. I agree to pay any reasonable copying and postage fees of not more than $20. If the cost would be greater than this amount, please notify me. Please provide a receipt indicating the charges for each document. I request your response within ten (10) business days. If you choose to deny this request, please provide a written explanation for the denial including a reference to the specific statutory exemption(s) upon which you rely. Also, please provide all segregable portions of otherwise exempt material. Thank you for your assistance. Sincerely, Arn H. Pearson, Esq. EXHIBIT A Case 2018CV002560 Document 1 Filed 09-24-2018 Page 9 of 12 Executive Director Center for Media and Democracy 122 W Washington Ave, Suite 830 Madison, WI 53703 Email: david@prwatch.org Phone: 608-229-6808 EXHIBIT A Case 2018CV002560 Document 1 Filed 09-24-2018 Page 10 of 12 STATE OF WISCONSIN DEPARTMENT OF JUSTICE 17 W. Main Street P.O. Box 7857 BRAD D. SCHIMEL ATTORNEYGENERAL Madison, V{I 63707-7 867 www.doj. state.wi,us Paul W. Connell Deputy Attorney General Paul M. Ferguson Assistant Attorney General fe r guso npm@d oj. state. wi.us Delanie M, Breuer Chief of Staff 6081266-1221 TTY 1-800-947-3õ29 F{X6081267-2779 August 7, 2018 Arn H. Pearson Center for Media and Democracy 122 West Washington Avenue, Suite 830 Madison, \ryI 53703 Dear Mr. Pearson: This is in response to your correspondence, dated August 3, 2018, in which you requested a copy of "all Wisconsin Department of Justice internal records and communications involving the Offices of the Attorney General and the Solicitor General with respect to the Affordable Care Act." You specified "[t]he search may be limited to records between January I, 2018 and the date of this request." The Department of Justice (DOJ) construes your correspondence as a public records request pursuant to the Wisconsin Public Records Law, Wis. Stat. SS 19.31 to 19.39. We have initiated a review of our files in order to respond to your request. Please note, processing your request will require a search of DOJ's email archive. The volume of emails required to be searched and the staff time and resources necessary for location and review will likely result in a longer response time than for a simpler request. If you wish to narrow or clarify your request to help reduce this response time, you are invited to do so. Wisconsin Statutes mandate that we provide you with a response "as soon as practicable and without delay." Wis. Stat. S 19.35(4Xa). DOJ is committed to providing a thorough and timely response to your request. Sincerely, 27 Paul M. Ferguson Assistant Attorney General Office of Open Government PMF:cks EXHIBIT B Case 2018CV002560 Document 1 Filed 09-24-2018 Page 11 of 12 STATE OF WISCO}ISIN DEPARTMENT OF JUSTICE BRAD D, SCHIMEL ATTORNEYGENERAL 17 W. Main Street P.O. Box 7867 Madison, \ryI 63707-7867 Paul W. Connell Deputy Attorney General www.doj.state.wi.us Paul M. Ferguson Assistant Attorney General fe r gus onpm@doj,state. wi,us Delanie M. Breuer Chief of Staff 6081266-t221 TTY 1-800-947-3629 FÀX6081267-2779 August 20,2018 Arn H. Pearson Center for Media and Democracy 122 West Washington Avenue, Suite 830 Madison, WI 53703 Dear Mr. Pearson: This is in response to your correspondence, dated August 3, 2018, in which you requested a copy of "all Wisconsin Department of Justice internal records and communications involving the Offices of the Attorney General and the Solicitor General with respect to the Affordable Care Act." You specified "[t]he search may be limited to records between January 1, 2018 and the date of this request." The Department of Justice (DOÐ construes your correspondence as a public records request puïsuant to the Wisconsin Public Records Law, Wis. Stat. SS 19.31 to 19.39. We must deny your request as insufficient pursuant to Wis. Stat. S 19.35(1Xh). This request is excessively burdensome and not reasonably limited as to subject matter and time. Our search for responsive records included a search for emails from January 1, 2018 through August 3, 2018 sent to or from Attorney General Brad. Schimel, Deputy Attorney General PauI Connell, Chief of Staff Delanie Breuer, Senior Counsel Daniel Lennington, Director of Communications John Koremenos, Director of Government Affairs Lane Ruhland, Policy Advisor Mike Austin, Executive Staff Assistants Donna Sarow and Amy Mikalofsky, Special Assistant to the Attorney General James Langnes III, Solicitor General Misha Tseytlin, Chief Deputy Solicitor General Ryan Walsh, Deputy Soiicitor General Luke Berg, Deputy Solicitor General Kevin LeRoy, Deputy Solicitor General Sopen Shah, and Assistant Solicitor General Amy MiIIer. We searched using the search term "Affordable Care Act." Our search for responsive records resulted in approximately 7,940 emails that would require review to id.entify responsive records and any possible redactions prior to release. The public records Iaw does not impose such heavy burdens on a record custodian that normal functioning of the office would be severely impaired, and does not require expenditure of excessive amounts of time and resources to respond to a public records request. Schopper u. Gehring, 210 Wis. 2d 208, 2I3, 565 N.W.2 d 247 , 742 N.W.zd 530. If you wish to narrow the scope of your request, you may do so at any time. EXHIBIT C Case 2018CV002560 Document 1 Filed 09-24-2018 Page 12 of 12 Arn H. Pearson August 20,20L8 Page 2 Pursuant to Wis. Stat. $ 19.35(4Xb), this determination is subject to review by mandamus under Wis. Stat. S 19.37(1) or upon application to a district attorney or the Attorney General. Sincerely Paul M. Ferguson Assistant Attorney General Office of Open Government PMF:cks EXHIBIT C