DNR discussed penalizing worker
Employee released public records to group fighting Kohler golf course
Political appointees of the Department of Natural Resources discussed disciplining an employee after she provided public records to a Sheboygan County citizens group fighting plans by the Kohler Co. for a golf course on the shore of Lake Michigan, emails show.
In the view of at least one top official then serving at the DNR, the employee took the extra step of compiling information the group had requested, presumably in a more understandable form, rather than turning over raw data.
The case highlights the sensitivity of open records cases involving the DNR — an agency that under Gov. Scott Walker has come under fire from environmentalists and conservationists for a more pro-business
tilt. Walker says the agency enforces all regulations but has sought to rein in what he says is the agency’s overreaching nature.
Environmentalists have sued the DNR twice since December over the length of time they must wait for records they have requested.
Also, the Milwaukee Journal Sentinel reported Feb. 5 that the DNR screens and shepherds records requests deemed politically sensitive.
The practice is in compliance with state law, although the story reported the existence of a “do not respond list” for some parties asking for information. And in one case, records were held up for three weeks until a top official reviewed them.
“The process by which the DNR handles open records requests is the same for all organizations and individuals,” George Althoff, spokesman for the DNR, said Friday.
As for the records in question for Kohler’s proposed golf course, Michael Bruhn, the DNR’s former assistant deputy secretary, said in a Jan. 16, 2015, email: “There is a great deal of concern about this situation.”
The emails were included in records the DNR turned over to the citizens group, the Friends of the Black River Forest.
Bruhn said Isabel Gutierrez-Pils, a policy adviser for the agency, did not follow DNR protocol when she provided information to Mary Faydash of the Friends of the Black River Forest.
The information included a compilation of water and well test results on Kohler-owned golf courses in the Sheboygan area. The group is opposed to the lakefront development.
Gutierrez-Pils said to Bruhn and others in an email two hours earlier on Jan. 16, 2015, that she had just emailed records to Faydash. She said the records were “all in the public domain” and had been reviewed by a department lawyer.
Discipline broached
In her email to Faydash, Gutierrez-Pils said: “Please note that although not required under open records law, our staff compiled a report that provides the information you requested.”
DNR officials declined to go into details, but this apparently went too far, with the agency putting in extra effort to make the information easier to understand.
“Why did we do this?” Bruhn said in an email to several DNR officials. Bruhn abruptly resigned his post as the No. 3 official at the DNR on Oct. 1 and later was hired as a legislative aide.
Four days after Bruhn sent his email, then-Deputy Secretary Matt Moroney, now an aide to Walker, responded, according to an email, “When people do not follow established protocols, written reprimands would be an appropriate tool to correct behavior?”
Althoff said no disciplinary action was taken and the agency provided the Friends of Black River Forest with everything it asked for.
When she read the DNR’s emails, attorney Christa Westerberg, who represents the group, expressed disappointment in how appointees like Bruhn reacted.
“I think there is a problem when an agency views its role as providing the least amount of information possible,” said Westerberg, who is co-vice president of the Wisconsin Freedom of Information Council.
Kohler’s 18-hole golf course in the Town of Wilson would be located on 247 acres along Lake Michigan, just north of Kohler-Andrae State Park. Kohler had owned a portion of the state park land before donating the property in 1966. Its executive chairman, Herbert V. Kohler Jr., a billionaire and one of Wisconsin’s richest residents, is a political supporter of Walker.
The company has not formally submitted plans for the golf course, but it is providing information to the DNR for the state’s eventual review of an application.
Kohler, with sales of $5.87 billion in 2014, is touting the Pete Dye-designed course as its latest showpiece in the Sheboygan area. Company representatives have emphasized that many green touches are planned, including avoiding sensitive wetlands and reducing the use of fertilizer.
Opponents worry about the effect the course will have on Lake Michigan and the Sheboygan River and have raised objections to the company’s request for an easement on state park property.
Faydash asked for water and well test data for Kohler courses dating to 1995. She also asked for baseline water quality data for Lake Michigan near Kohler’s Whistling Straits golf course and for the Sheboygan River near Black Wolf Run before the courses were constructed.
“If you say you are not going to pollute with runoff and not harm the groundwater, I wanted to see the history of testing,” Faydash said. “We are fighting for a level playing with Kohler, and our records requests help us with information.”
Records lawsuits
Westerberg’s law firm, Bender Westerberg, is the second law firm since December to sue the DNR over open records cases.
In January, Midwest Environmental Advocates filed a suit against the DNR alleging unreasonably long delays in getting information. In one case, it waited more than seven months for records. Attorney Sarah Geers said Friday the firm has not received any records but has discussed the issue with state Justice Department lawyers.
Attorney David Bender filed the December suit on behalf of Midwest Environmental Defense Center after getting no response for two requests made in July.
Althoff said the DNR’s internal procedures for handling Bender’s requests were not handled properly by an employee, and that “corrective action” was taken, including staff training.
Records show that a Justice Department attorney representing the DNR wrote the judge in the case on Thursday and said all information the law firm asked for has been turned over and that both sides will ask the judge to dismiss the case.
The DNR’s caseload for records requests has skyrocketed in recent years. There were 337 in 2012, 705 in 2013, 924 in 2014 and 3,143 in 2015, according DNR records. The number of pending records cases now stands at 87.
The reason for the rise: Under Walker, officials have tried to better coordinate requests. Information that once might have been sent out by a DNR employee now goes through a more formalized process. Also, there has been a surge in contentious issues, including iron and sand
mining, wolf hunting, the growth in large-scale dairy farms and groundwater use.
DNR Secretary Cathy Stepp told the Natural Resources Board on Jan. 27, “we have taken all open records cases very seriously,” and employees are working full-time on the matter.
The disclosure of the Kohler case comes at a time when Wisconsin officials have sought to limit access to public records.
In the wake of public criticism, the state Public Records Board in January rescinded a decision that had been used to limit access to some records by defining them as having temporary significance. That allowed them to be immediately destroyed by government officials.
Before the July Fourth weekend, members of the Legislature’s Joint Finance Committee amended the state budget by making sweeping limits in the open records law. Republican leaders who control the Legislature backpedaled after a criticism from members of both parties.
Also, Walker’s office has withheld some records that include internal deliberations, saying releasing the records might inhibit open dialogue within the administration. State law doesn’t specifically recognize this as a reason for withholding records, but Walker says his office and his administration are in compliance with the law.