The John K. MacIver Institute for Public Policy asked Sen. Jon Erpenbach of Middleton for the emails in March 2011. Erpenbach turned over 2,600 emails but redacted information that would have identified the senders.
Erpenbach argued he was protecting them from reprisals. He also contended the Senate allows members to decide what information to keep confidential, even if the decisions are inconsistent with Wisconsin's open records law. Grant County Circuit Judge Robert VanDeHey ruled last year that Erpenbach properly redacted the information.
The 2nd District Court of Appeals reversed VanDeHey on Wednesday. Appellate Judge Mark Gundrum, a former Republican state representative, wrote in the lead opinion that public awareness of who is attempting to influence policy and from where is crucial to the oversight of government.
Erpenbach identified threats and harassment leveled against public officials and police at the state Capitol during the debate but failed to show any anyone made threats or retaliated against people who communicated their positions through correspondence, Gundrum wrote. It's unreasonable for a person sending a lawmaker an email to think others won't see the message, he added.
The Legislature can set its own rules for developing legislation, Gundrum wrote. But Erpenbach's redactions fell outside that realm and he hasn't shown why legislators deserve greater deference in disclosure decisions than other record custodians, the judge wrote.
Judge Richard Brown wrote in a concurring opinion that concerns about reprisals are valid but redacting identifiable information undermine the presumption of complete public access under the open records law.
"As it stands now, accepting Senator Erpenbach's position that an exception exists in this particular case ... would open a Pandora's box," Brown wrote. "This result is a notice to legislators and citizens, whoever they are and whatever their opinions, that communications to legislators are subject to the open records law, without redaction."
Erpenbach said in a statement he still believes Senate rules allow him to protect citizens who contact him and he's considering appealing to the state Supreme Court.