The Freedom From Religion Foundation has filed its first lawsuit over a violation of open records law, after a track record of taking more than 60 Establishment Clause lawsuits.
In a suit filed today in Dane County Circuit Court, Wis., the Madison-based national state/church watchdog charges that Wisconsin open records law was violated by Theodore Nickel, state Office of the Commissioner of Insurance and Commissioner. In addition to FFRF, Staff Attorney Patrick Elliott is a plaintiff.
Elliott made a series of open records requests of the Office of the Commissioner after a reported agency decision that Wisconsin's contraceptive mandate, known as the Contraceptive Equity Law, would no longer be enforced because it was preempted by the June 30 Hobby Lobby ruling by the U.S. Supreme Court.
FFRF and many other observers disagreed, since the Religious Freedom Restoration Act under which the ruling was decided applies only to the federal government, not states.
On July 21, the right-wing news outlet MediaTrackers quoted J.P. Wieske, OCI legislative liaison and public information officer, as stating the Contraceptive Equity Law was "preempted." MediaTrackers reported that the state would not enforce the law. Legitimate news sources then piggybacked on MediaTrackers' story.
Elliott first made a records request July 22 about OCI's enforcement of contraceptive coverage requirements, including Nickel's authority to disregard state law. Elliott followed up July 25 with further requests.
When more than a month had lapsed, Elliott again contacted the agency on Aug. 25. Although that resulted in 16 pages of documents, much of the requests were denied or not responded to. Elliott contested the denial in an Aug. 29 letter, which also was not responded to. He subsequently requested records from the Office of the Governor, including any communications with the OCI related to Wisconsin's contraceptive mandate.
Gov. Scott Walker's office made two denials, but otherwise provided 36 pages of documents, including some communications with OCI that OCI had failed to provide to comply with FFRF's request.
The law says responses must be provided "as soon as practicable and without delay." FFRF charges that OCI violated numerous portions of the law and seeks an order directing the defendants to produce the requested records, award reasonable attorneys' fees, damages of not less than $100, punitive damages and other actual costs.
"Let there be sunlight," said FFRF Co-President Annie Laurie Gaylor, who thanked the firm of McGillivray Westerberg & Bender for representing FFRF.
The case is in the courtroom of Circuit Court Judge Amy Smith.