Wisconsin judge: Elections Commission, not its members, responsible for providing public records

A Dane County judge said the Wisconsin Elections Commission, not its members, is responsible for producing public records created by commissioners.

The decision dismisses Commissioner Bob Spindell from an open records lawsuit seeking documents and communications from the Elections Commission in a case related to the 10 Republicans, including Spindell, who attempted to cast electoral ballots for former President Donald Trump after the 2020 election.

Advocacy group Law Forward originally filed a complaint with the Elections Commission in 2021, calling on the commission to hold the fake electors accountable for what the group describes as violating state election law. Law Forward later demanded that Spindell be recused from considerations of the complaint because of his involvement in the attempt to cast false ballots.

During a November 2021 meeting where the Elections Commission was scheduled to move into closed session, Spindell claimed during the public portion of the meeting that the session was an “attempt to disqualify” him from participating in discussions. Spindell revealed that the commission had discussed his recusal during a closed session at a prior meeting.

According to their complaint, Law Forward submitted a public records request the following day to the Elections Commission for documents and communications related to Spindell’s statement, which he appeared to read during the public meeting. But the legal advocacy group said they only received a document resembling the statement with no information about its author or where it came from, leading the group to sue for the records last April.

During a hearing on Tuesday, Dane County Circuit Judge Jacob Frost disagreed with Law Forward’s argument that Spindell can be listed as a defendant or held accountable under the state’s open records law.

“Commissioner Spindell himself is not an authority,” Frost told an attorney for Law Forward during the hearing. “Because he is not an authority, you don’t have a cause of action against him to force him to turn over the records, you have a cause of action against the authority. The authority is the WEC.”

Law Forward said in their complaint that an Elections Commission staff attorney called Spindell “the custodian” of the records, which the group’s attorney reiterated during the hearing. But Frost said that alone did not mean Spindell could be sued.

“If an agency is screwing up, meaning that they’re saying ‘somebody is the custodian of their own records, we’re not responsible for it, we’re not the custodian,’ and they’re wrong about that, that doesn’t change the statute,” he said during the hearing, which was livestreamed by Wisconsin Eye.

Law Forward’s open records case against the Wisconsin Elections Commission will continue. The group has another lawsuit against the agency and Spindell before a different Dane County judge.