The case between former state Public Services Commission head Mike Huebsch and conservation groups stems from the construction of the Cardinal Hickory Creek power line.
The 102 mile long power line would run from Dane County into the state of Iowa. In late 2021, a judge ruled that the line could no longer be completed with its current route, due to the line running through a national wildlife refuge on the Mississippi river.
The line was originally approved by Huebsch in 2019, and conservation groups, such as the Driftless Area Land Conservancy, a group that protects natural areas in Wisconsin, have fought against it since. Monday’s hearing regards private phone records between Huebsch and the American Transmission Company, or ATC, the group that would be in charge of building the line.
Huebsch is a former state GOP legislator, and served as Speaker of the House from 2007 to 2009. In 2010, Huebsch was appointed as Secretary of the state Department of Administration by then-governor Scott Walker.
Jennifer Filipiak is the executive director of the Driftless Area Land Conservancy. She says they have reason to believe that private communications between Huebsch and ATC may have given bias to Huebsch’ decision to approve the line.
“Basically what we’re looking for is to have our day in court so that we actually can explore these presumptions of bias. We cited the hundreds of phone calls and encrypted messaging system to discuss… we don’t know what they discussed with persons of interest. We wish to explore that, so that’s what we’re looking for,” Filipiak says.
Filipiak says that the existence of hundreds of phone calls between Huebsch and ATC, as well as their use of an encrypted messaging service, is cause for alarm.
“We think that there is enough evidence that there is an appearance of bias to approve the transmission line. So to prove that, instead of just having perception, just like any other court case, we want to file discovery and ask him to turn over those communications so we can see if there was bias in that,” Filipiak says.
Huebsch says, however, that there was nothing unprofessional about his communication with ATC officials, and that what they said had nothing to do with the Cardinal Hickory Creek line. He says that the communications are simply chat between friends. Huebsch was represented Monday by Madison lawyer Ryan Welsh. Welsh says that just because the conservation groups assume that there is bias, it does not mean they should be able to search private phone records.
“Government officials, when they enter public service, they get to keep their personal relationships, they get to continue their private lives. We the people of Wisconsin, we the state, only require that they hand over their public records, that they follow their obligations to keep evidence relevant to any lawsuit, and that they don’t have improper conversations with people who have matters before them. Beyond that, any government official is allowed to have conversations with friends. They are allowed to do that and no one has a right to see those documents,” Welsh says.
The court was divided in their opinions on the request. The court’s three liberal judges said that it was against the regular procedure for the Supreme Court to hear Huebsch case before it could be heard by a lower court. Conservative judges, however, said that the request was, in the words of justice Brian Hagedorn, “a dramatic intrusion.”
Records can be made public under Wisconsin’s open records law. But weighing when to do that can be complicated. The record must exist, and there can be some privacy factors in deciding whether a records custodian releases it. The request itself must not be overly broad, and the record in the public’s best interest.
The issue comes from the question of whether these private phone records are considered public records.
Bill Lueders is an editor of The Progressive magazine, and is president of the Wisconsin Freedom of Information Council, a group dedicated to protecting public access to government records.
Lueders says because the communication is between someone who was at the time a public official and a private group, conservation groups should have access to those records.
“I would say that the communication between a public official and a private enterprise by definition should be a public record. There’s no reason a public official should be communicating with private enterprise about that private enterprise’s function with that not being a public record. It should be open to the public. I don’t know that they would have a purely private conversation with someone under those circumstances. It would be a conversation related to government function and therefore one that should be open to public records,” Lueders says.
The state Supreme Court is currently deliberating the case.
Michael Huebsch could be reached for comment by airtime.