Appeals Court Rules Against DNR Board Holdout

The Wisconsin District I Court of Appeals ruled against former state Natural Resources Board Chair Frederick Prehn this week in a case over a public records request filed while Prehn was refusing to vacate his seat on the board.

Prehn, a Wausau dentist, was appointed to the NRB by former Republican Gov. Scott Walker to a term that was supposed to expire in May 2021. Despite his term’s expiration, Prehn announced he would refuse to step down, preventing Democratic Gov. Tony Evers from appointing his replacement and flipping ideological control of the board, which sets policy for the Department of Natural Resources.

Emails obtained through public records requests showed that Prehn was working with legislative Republicans to remain in his seat and maintain influence over state policies on controversial issues such as wolf hunting and water quality standards.

Prehn ultimately remained on the board for 20 months past the expiration of his term.

While he was refusing to leave, Midwest Environmental Advocates filed a public records request seeking all communications Prehn made about his refusal to leave — including emails and text messages made on public and personal devices or accounts. Through the DNR, Prehn turned over emails relevant to request but not text messages. A second records request by MEA to another Republican member of the board showed that Prehn had been texting about his decision.

MEA sued in Dane County Circuit Court to have those text messages released. The circuit court found that Prehn had improperly withheld the text messages and a schedule was set for him to turn over those records.

MEA filed a motion requesting that Prehn pay damages and attorney’s fees. The circuit court denied that motion under a 2022 state Supreme Court decision which found if a government agency voluntarily turns over records while a lawsuit for those records is pending, the government does not have to pay attorney’s fees to the requesting party.

That decision, Friends of Frame Park v. Waukesha, has drawn criticism from legislators from both parties and a bill to negate the decision has been working its way through the Legislature.

On Tuesday, the appeals court ruled that Prehn’s text messages count as public records and therefore should have been turned over under the state’s open records law. The court majority rejected  Prehn’s contention that the texts were about his “purely personal” decision to remain in office. The court also overturned the circuit court decision not to award MEA attorney’s fees.

“This decision is a win for the people of Wisconsin. It strengthens our democracy by ensuring that government officials conduct their business with openness and transparency,” MEA attorney Adam Voskuil said. “Had Prehn’s arguments been accepted, the public records law and our state’s commitment to open government would have been significantly weakened.”

Appeals Court rules against Prehn in public records lawsuit was originally published by the Wisconsin Examiner.