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8/3/2010 10:34:00 AM
Times, Miller reach settlement over open records lawsuit
Senator agrees to pay negotiated attorneys fees and costs totaling $4,447
Sen. Mark Miller
Sen. Mark Miller

Richard Moore
Investigative Reporter


The Lakeland Times and state Sen. Mark Miller (D-Monona) have reached a settlement agreement in an open records lawsuit the newspaper filed against the senator, with Miller agreeing to pay a negotiated compromise amount of attorneys fees and costs in the case.

All totaled, Miller will pay aggregate attorneys' fees and costs of $4,447. That represents $5,250 for the fees and costs, minus $803 the newspaper is paying for location and copying costs for the records themselves.

According to the agreement, the settlement represents a compromise of allegations by the newspaper that Miller continues to assert are unfounded, and both sides have agreed the settlement is not meant to be construed as an admission that Miller violated the public records law.

The Times filed the lawsuit in April after 11 weeks passed without a specific answer to an open records request sent to Miller on Jan. 15.

In the Jan. 15 letter, the newspaper requested all electronic and written correspondence between Miller and any member of his staff and Tia Nelson, the executive director of the Board of Commissioners of Public Lands, Natural Resources Board member Jonathan Ela, DNR deputy secretary Pat Henderson, and the Gathering Waters Conservancy.

The Times made similar requests to the DNR and Nelson. Both the DNR and Nelson complied.

In addition, the newspaper sought all electronic and written correspondence to or from Miller or any member of his staff that pertained to Stewardship access requirements in the 2009 budget bill or to the Stewardship access rule the DNR was then promulgating.

Miller acknowledged the request in a Jan. 25 letter. However, in his response, he neither denied the request nor said he would fulfill it, but said he was reviewing it.

"I am in the process of reviewing your request and determining how best to proceed with my response," Miller wrote. "Because the request appears to be quite extensive and because each member of my office has a variety of duties in addition to responding to requests it may take some time to complete a response."

Nearly three months - 11 weeks - passed without any further communication, which Lakeland Times publisher Gregg Walker said amounted to a violation of the law.

In the subsequent complaint, The Times claimed that a denial of public access can only be made in an exceptional case and this was not an exceptional case.

The complaint also asserted that state statutes require a response "as soon as practicable and without delay."

Constituent letters

That was not the end of the controversy.

After the lawsuit was filed, Miller released the correspondence but redacted the names of those writing constituent letters, saying the names of citizens who correspond with him over various issues were exempt from the state's open records laws.

The position conflicted with long-standing legislative tradition and directly contradicted a briefing book the state gives to every lawmaker.

In addition, the newspaper argued that keeping secret the names of those who write letters to lawmakers would undercut the public's right to judge the true amount of support a measure might have, and whether lawmakers' claims about letters they receive were legitimate.

The Times then filed an amended complaint, saying Miller violated the open records law by concealing the names and addresses of citizens who corresponded with him on the subject of public access to public lands.

Miller then reversed course and released the unedited correspondence.

"On consideration of your client's expressed concerns, Senator Miller has decided to release copies of the e-mail from which names are not redacted," wrote assistant attorney general Mary E. Burke, who represented the senator for the Department of Justice in the case.

Despite the release of the records, The Times continued to pursue the original lawsuit, asserting that untimely responses thwart the law and should be contested.

"Senator Miller's delay in responding to the newspaper's request injured the plaintiffs by depriving them and the rest of the public of their rights to a timely response under the Open Records Law," the complaint stated.

The newspaper also sought to recoup reasonable attorneys' fees, costs and damages.

Both sides have agreed that the stipulated settlement reached this week represents a "reasonable and appropriate resolution of the claims in dispute."

Richard Moore can be reached at rmmoore1@verizon.net.



Reader Comments

Posted: Wednesday, August 11, 2010
Article comment by: Money Bags

I agree! The law suits filed on open records, open meetings, and other like government official violations of laws carries no personal penalties.

To run rampant and defiant of laws, with no fiscal or job related reprisals, gives NO reason to follow the law. "Let the tax payers pay for my abuse and disregard of law" is wearing a bit thin for most voters.

Actions speak louder than words, and voting speaks louder than anything. Yet another reason to re-elect no one!



Posted: Friday, August 6, 2010
Article comment by: Rick W

Now get the SOB to pay out of his own pocket and not use state money!!!



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