GOP AG candidates (copy)

Republican candidates for Wisconsin attorney general take part in a forum in Milwaukee. From left: Former state lawmaker Adam Jarchow, conservative lawyer Karen Mueller and Fond du Lac County District Attorney Eric Toney.

A five-month-old open records request has become a point of contention in Wisconsin’s Republican attorney general primary.

Attorney and former state Rep. Adam Jarchow says the response (or lack thereof) shows that Fond du Lac County District Attorney Eric Toney can’t be trusted to serve as an expert on open government. Toney says his office — like other district attorneys’ — is doing its best to balance records requests with prosecutorial duties, all with limited resources.

The request — submitted by Erin Fern to Toney’s office Feb. 16 — seeks the following records:

  • A record of open records requests that were received by the Office of the Fond du Lac District Attorney between January 1, 2021, and February 10, 2022, with the date of receipt and the date of fulfillment.

  • District Attorney Eric Toney’s calendar from January 1, 2015, through February 10, 2022.

  • Toney communications from January 1, 2015, to February 10, 2022, featuring the words: "Trump," "Pence," "Insurrection," "voter fraud," "chisholm," "graveley," "garrett toney," "jarchow."

  • Communications between Eric Toney and Milwaukee District Attorney John Chisholm and his office between January 1, 2015, and February 1, 2022.

  • Communications between Eric Toney and Kenosha District Attorney Michael Graveley and his office between January 1, 2017, and February 1, 2022.

  • Communications between Eric Toney and the office of the Attorney General and/or Josh Kaul between January 1, 2019 and February 1, 2022.

  • All emails to or from Eric Toney with the word “Rittenhouse” between August 25, 2020, and February 10, 2022.

  • All emails to or from Eric Toney between February 1, 2020, and July 1, 2020, with (26 specified words or phrases, mostly related to COVID-19 "safer at home" policies)

Fern followed up with Toney’s office by phone and email on March 2 and 3, then sent the request again via First Class Mail a few days later. 

Fern made several more attempts to follow up, including sending an email saying she felt like she was “purposely getting cut off or put on hold for 20 mins at a time.” 

On March 14, Fern received acknowledgment of her request — through an email from Toney’s office manager, Julie Grahl, and a voicemail from Toney himself.

In the voicemail, Toney said his office had drafted a response on Feb. 17 (the day after the initial request was submitted via email) that “for administrative reasons … was not sent out” but would be sent later that day.

“I apologize for the delay. That should have been sent to you many weeks ago, so please let us know if you have any questions. Feel free to call me as well,” Toney said in the message.

On March 15, Fern submitted a supplemental request, seeking additional records related to her initial request. The following day, Toney’s office told Fern the requests were being worked on. The office acknowledged as much again on March 23.

“However, no timeline has been provided as to when the District Attorney’s Office will provide documentation responsive to either the original February 16 request, or the supplemental request of March 15,” wrote attorney Matthew M. Fernholz in an April 14 letter to Toney’s office.

In the letter, Fernholz said Fern would pursue legal action if she didn’t receive a response by April 22.

Toney responded on April 19: “Do (sic) to the nature of the first request it will take some time to fulfill that request for a multitude of reasons, including: the breadth of the request, separation of case related materials, work product, redaction, and vailable (sic) staff to fulfill the requests.”

“This will then necessitate the creation of a redaction log and documenting any other records that are denied, if necessary. This is necessary in the event Ms. Fern decides to challenge any redactions or records that are not turned over for various legal reasons,” Toney wrote. “We may be able to piecemeal some of the items requested that do not touch on some of the above issues. If that is desirable please advise my office. Please feel free to take any legal steps you deem appropriate as we work to fulfill the request.”

Fern’s attorney responded the following week: “To answer the question you posed, please provide documents on a rolling basis as they become available, rather than waiting to produce anything until a full review of all documents is finalized. We thank you in advance for your anticipated compliance with this request.”

Almost three months later — and five months since the original request was submitted — Fern has yet to receive any records from Toney’s office. 

Under Republican former Attorney General Brad Schimel, the state Department of Justice established an Office of Open Government in 2015 “to ensure that the Department of Justice preserves the proud tradition of open government in Wisconsin.”

"The attorney general is relied upon as an expert on open records law and is called upon to give advice for complying with open records requests, yet Eric Toney has spent almost five months ignoring a request, which makes you wonder what he is hiding or what else is slipping through the cracks in his office,” Jarchow said in a statement to the Cap Times.

Asked about the status of Fern’s request, Toney said it is “by far the largest open records request” his office has received in his 10 years as Fond du Lac district attorney.

“We are a portion of the way through one of the eight in-depth bullet pointed requests,” Toney said in a written response. “We have already identified a stack of responsive records nearly 10 inches tall, likely more than 1,000 pages.” 

Toney said he expects the requests for communications with other district attorneys’ offices alone will produce thousands of pages, “given the manner prosecutors communicate across the state.” 

Because some of those records “include victim information, work product, and prosecutor cases files,” Toney said, they take additional time to process. In some cases, personal information — especially pertaining to crime victims — may need to be redacted, and the release of some records could be denied altogether, as prosecutor case files can be exempted from the open records law.

“We are balancing the fulfillment of this request, along with all public records requests, with our available resource and the continuing need to prosecute crime,” Toney said. “It is a challenge district attorneys face across Wisconsin to help ensure transparency in government.”

Toney said he believes it’s important “to ensure the public has access to records and an understanding of what is occurring in the district attorney’s office,” noting that his office generally does not charge people for request fulfillment.

“Public records requests are important to my office and we maintain a transparent relationship with the media and public,” he said.

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