Judge backs conservative group's suit over Wisconsin Department of Public Instruction records

MADISON - A conservative legal group sued the state Department of Public Instruction late Thursday, saying the agency improperly withheld public records and illegally told school districts not to immediately release documents.

A Department of Public Instruction spokesman disputed those claims and said the agency is working to produce the records. 

Acting within hours of the lawsuit, Dane County Circuit Judge Richard Niess on Friday ordered the department to immediately turn over records to the Wisconsin Institute for Law & Liberty or appear before him on Feb. 26 to explain at a hearing why it did not believe it needed to do so.

The institute sought records in August regarding the federal Every Student Succeeds Act, which requires the DPI to create an education accountability system.

In November, DPI provided some records but declined to fulfill parts of the request because it said WILL’s request wasn’t specific enough and was too burdensome, according to the lawsuit. WILL filed a narrower request in December but has not received additional records.

The lawsuit could be just one stage in a protracted fight. WILL believes DPI must get the approval of lawmakers to implement the Every Student Succeeds Act and believes the records it is seeking will show whether DPI has exceeded its authority.

“DPI has maliciously delayed responding to WILL’s record requests in order to mask the department’s illegal activities,” WILL attorney Thomas Kamenick wrote in the lawsuit.

WILL also took issue with DPI providing schools with reports this week that it said could not be made public until March 5. “No information is to be shared with anyone in the public until that date,” according to a DPI notification to schools.

“DPI’s ‘embargo’ of public records is without authority and a brazen flouting of the Open Records Law,” Kamenick wrote.

DPI spokesman Tom McCarthy in a statement described the embargo as a "request that districts temporarily refrain from publishing information to give all districts time to understand and process that information."

He disputed the lawsuit's claim that the agency had violated the records law.

"The department has complied time and again with WILL's requests for information," he said in his statement. "In this instance they are seeking records that require redaction and staff time to prepare. Our staff are in the process of completing that work, but have other duties beyond WILL's requests. We cannot change that fact no matter how many lawsuits they file."

The requests for records were filed when Tony Evers headed DPI. Evers left the position in January when he was sworn in as governor. He named Carolyn Stanford Taylor as his successor.

Already, WILL and the Department of Public Instruction are in a legal battle over what the agency must do to enact state rules. Arguments in that case before the state Supreme Court  are expected in the coming months.