Statement from Attorney General J.B. Van Hollen in the Matter of Center for Media and Democracy vs. Leah Vukmir
The Journal-Sentinel's editorial, "Legislators Are Not Above The Open Records Law," accuses me of "turning my back" on my commitment to open government because of a position the Department of Justice has taken in court to defend a legislator against a lawsuit brought under the public records law.
Open government is an essential tool to citizen-informed democracy, and I remain committed to using my position as Attorney General to facilitate full compliance with the law. But I also took an oath to uphold the state Constitution. Article IV, Section 15 of Wisconsin's Constitution provides that members of the legislature "shall not be subject to any civil process, during the session of the Legislature...." The framers of the Constitution inserted this provision -- common among state constitutions -- to give temporary protection to lawmakers from civil suits while they are doing the people's work. Whether the framers' decision to provide this unique protection to legislators was a proper balancing of interests is a debatable question. What is not debatable is my responsibility to defend its application when it is invoked. An attorney general simply cannot pick and choose parts of the Constitution to disregard because they may act to frustrate a different policy goal. If I had, the Journal-Sentinel would be right to publish an article entitled "Attorney General Turns His Back On The Constitution."
In the case that inspired the Journal-Sentinel's editorial, Senator Vukmir chose to invoke her privilege from civil process -- as she is constitutionally entitled to do. Some legislators make that choice, some do not. But neither Senator Vukmir nor I believe legislators are above the public records law. In fact, in this case, Senator Vukmir's position is that she has fully complied with the public records law by producing all records subject to the request. This is unlike the position taken by the other legislator mentioned in your story, who asserted that he had no obligation under the public records law to disclose the name of any person who contacted his office about a controversial piece of legislation.
The issue then, is not if the public records law applies to legislators. It does. Legislators, like other public officials, are under a legal duty to respond to public records requests as soon as practicable and without delay. The only question is when they may be sued for an alleged violation. If they choose to invoke their temporary privilege, that is a question the Constitution answers.
MADISON, Wis. (AP) -- Wisconsin Attorney General J.B. Van Hollen says legislators aren't above the open records law but the Wisconsin Constitution clearly allows them to invoke immunity in lawsuits seeking documents.
Van Hollen, a Republican, released a statement Tuesday defending himself after his state Justice Department filed a motion arguing Sen. Leah Vukmir is immune from a Center for Media and Democracy lawsuit seeking records from an American Legislative Exchange Council conference. Van Hollen's stance stunned open records advocates.
Van Hollen says legislators must respond to public record requests as soon as possible. If a requestor chooses to sue to compel disclosure, lawmakers can invoke their constitutional protection from civil process -- which is just what Vukmir did. He says he has no choice but to uphold the Constitution.