Source: Lake Geneva Regional News

Court will review Fesenmaier’s e-mails
Open record lawsuit stems from Mirbeau-Hummel issue

by Rob Ireland

May 05, 2011

Elkhorn — A Walworth County Circuit Court Judge will review e-mails a former Lake Geneva alderwoman claimed are safeguarded under attorney-client privilege to determine if, in fact, they are protected.

On Monday afternoon, Judge John Race listened to summary judgement motions for both the Lake Geneva Regional News and former Alderwoman Mary Jo Fesenmaier. Race didn’t act on the motions — which would have ended the case —but instead left the door open for the newspaper to collect additional discovery evidence.

In February and March of 2010, Regional News Editor Lisa Seiser filed open records requests with officials in Lake Geneva and Linn Township for documents related to the controversial Mirbeau and Hummel plans. Fesenmaier and other city officials are also defendants in a federal lawsuit involving the proposed developments.

Months after the request, Fesenmaier sent a note to the newspaper that stated, “I have no records to share.”

The Regional News claims Fesenmaier failed to produce records, which she was required to turn over under the Wisconsin open records law.

The newspaper filed a writ of mandamus asking the court to have Fesenmaier produce all the documents. Fesenmaier claims there are no documents that aren’t protected under attorney-client privilege.

During the hearing, Race questioned why the newspaper was relentlessly pursuing Fesenmaier, as opposed to other city officials.

“Are you on a vendetta?” Race asked Seiser and her attorney. After the question was asked, Fesenmaier and her husband, who was in the audience, began affirmatively nodding.

However, he also questioned why documents weren’t turned over to the newspaper.

“I’m not trying to hide documents,” Fesenmaier’s attorney Amy Doyle said. “I don’t have anything, Mary Jo doesn’t have anything.”

Race will now determine whether 36 e-mails that Fesenmaier does have are protected under attorney-client privilege, which Doyle claims.

“We will continue the discovery and maybe that would be the slam dunk,” Race said.

During the May 2 hearing, Race also questioned why the paper didn’t take Fesenmaier at her word when she claimed not to have records.

“Frankly, the response didn’t seem to pass the smell test,” said Regional News attorney Christa Westerberg of McGillivray Westerberg & Bender LLC.

Westerberg said Fesenmaier also appeared as the sender or recipient in records that were provided by other city officials, which led the paper to believe the alderwoman was disingenuous in her response.

Throughout the discovery process, Westerberg said Fesenmaier has changed her reasoning for withholding documents — by first stating there were no records, but later stating the documents were protected.

“The rationale for nondisclosure and discussion of facts in this case is still shifting,” Westerberg said.

Doyle said her client didn’t use the proper language when responding to Seiser’s request. However, Fesenmaier never had records that could be turned over.

Race seemingly understood why Fesenmaier didn’t respond to the request correctly.

“You are dealing with a layperson,” Race said referring to Fesenmaier.

However, Westerberg said Fesenmaier consulted with the city’s attorney and Doyle before providing the newspaper with the response to the request.

According to Westerberg, in a court deposition Fesenmaier also admitted to receiving training regarding open records laws.

Deleted e-mails

Doyle said e-mails that would have fit under the scope of the open-records request had been deleted prior to Fesenmaier receiving the request from the paper.

“So the delete button put her out of business?” Race asked.

Doyle argued Race shouldn’t grant the Regional News’ motion because some of the e-mails were deleted before the request.

“Some of these items may have been deleted,” Doyle said. “You can’t use the fact that they were deleted prior to the public records request as a basis for the action.”

Westerberg said deleting e-mails is “clear violation of open record laws.”

“She did have a duty to keep these documents,” Westerberg said. “As an alderperson she is required to keep documents relative to her office.”