Judge rejects city request to dismiss records suit

Ozaukee County Circuit Judge Adam Gerol last week rejected a request by the City of Port Washington to dismiss a lawsuit brought by Town of Port resident Lynde Uihlein, who said the city has not complied with an open records request she made seeking documents relating to Vantage Data Centers Lighthouse Campus on the city’s north side

However, Gerol stopped short of issuing a writ to compel the city to produce the records, instead setting a Feb. 23 hearing to take testimony in the matter.

During the Jan. 28 hearing, City Attorney Matt Nugent argued that the city has complied with the open records request.

“The city did not deny her request,” he said. “The city did, in fact, turn over the records.”

But Uihlein’s attorney, Elizabeth Pierson,  told Gerol that isn’t necessarily true.

“There is an ongoing dispute over whether the city has complied,” she said. “We do not believe the city has fully complied with Ms. Uihlein’s request.”

At issue is whether the city is required to turn over attachments to emails, she said.

“The idea that an attachment to an email is not part of the communication does not seem reasonable,” Pierson said.

Nugent disagreed, saying that if Uihlein wanted the attachments as well as the letters, she should have specifically asked for them.

“The city cannot guess at what a requestor is asking for,” he said.

Gerol disagreed, saying, “I can’t see any distinction between the request for communications and attachments. That is the complete communication. That’s what’s being asked for. It must be viewed together.

“There has not been a complete response to the open records request. For that reason alone, the motion (to dismiss the case) is not properly supported.”

Pierson also argued that the city did not comply with Uihlein’s request in a timely manner.

While the city has said it was overwhelmed by requests due to the data center campus project, she said that’s not relevant.

“The burden is on the (city) to respond in a timely and complete manner,” Pierson  said, adding that there was no indication the city was aware of Uihlein’s request until after the lawsuit was filed.

Even if the city had produced all the requested records, the court can determine if the city’s delay was lawful or not, she said in a motion in the case.

But Nugent said the city “is entitled to a reasonable amount of time to respond. It merely had not responded yet.”

But Gerol noted that even if it is difficult for a municipality to comply with open records requests, it is something that must be done.

Uihlein’s open records request seeks any communications between city staff and officials and representatives of Vantage or Kapur Engineering regarding the data center, including communications regarding the development agreement, any draft development agreement that had been exchanged, preliminary building, site, operational, stormwater, sanitary sewer, utility, water or other plans for the data center and the city’s zoning map.

The city did not respond to the August request, which was sent to City Clerk Susan Westerbeke, the lawsuit states, and on Oct. 29 Pierson sent a follow up email regarding the request. When the suit was filed on Nov. 24, it states, the records had not yet been produced.

The open records law “provides that a records custodian, to the extent that responsive records exist, must respond to a public records request either by fulfilling the request or denying the request...as soon as practicable and without delay.”

The lawsuit seeks an order from the court acknowledging the city violated the open records law and directing the city to produce the requested records. It also seeks reimbursement of Uihlein’s attorney fees and damages.