City of Brookfield alderman denies record request

5th district Alderman Scott Berg has denied an open records request for the e-mail he received from a 1st district resident about Berg’s “study” to move the fire stations. In Berg’s reply he blames Microsoft:

Unfortunately, as I stated, I cannot find the email I received or sent and, of course, the phone call I made created no qualifying record. I am distressed that my email archive system does not include those two notes. I ran the Microsoft SCANPST utility and found several corrupted PST files, which may account for the issue. I will also review my email backup procedure. I regret not being able to find the record and wonder about what else may be lost, but the problem seems to be more in Microsoft’s control than in mine.

Fortunately, Wisconsin law really doesn’t care who Berg blames, the question is whether or not the proper authorities will hold Berg accountable for denying the record.

At issue is the story of Berg harassing a 1st district resident by calling HIS BOSS and chiding the resident for sending an e-mail from the company’s server. Here’s what Berg has to say:

As for the item you mention in your second paragraph, I can find no such record. I do have a vague recollection of receiving an email last summer from a salesman asking about the north side station. Since he sent his query using his employer’s email account, I phoned the company to determine if this was a legitimate citizen inquiry or a salesman’s fishing expedition. I was not able to speak to the email author and what the employer’s response to him was, I don’t know. I believe I ultimately sent him an email stating that all the relevant information was in the task force report, referred him to the City Clerk to obtain a copy and offered to handle any follow up questions. I did ask Kris Schmidt to review her email archive, but apparently I did not copy her on the exchange.”

City hall certainly deals with a bunch of “vague recollections.” He received an e-mail, he sent an e-mail. The computer ate it.

Berg knows how damaging this information will be to his already sullied reputation. Readers, it looks like we have a summer project. Will the new Waukesha County DA care that public records are being withheld? The law says I can ask the state attorney general if I’m not satisfied. Here’s the full text of request and denial of the one subject.

Hey, your government is at issue. What do you think?


  1. I think Scott Berg should be more proficient in dealings with computer-related issues since he did graduate with a degree in Computer Science, as his website proudly totes.

  2. His excuse doesn’t make a lot of sense. The average person has one PST file in Outlook, maybe two if there’s an autoarchive PST. Why would he have several, and why would he have only noticed this problem now? If your PST files are corrupt, you’ll see other problems quite quickly. That’s the usual reason someone even learns about the SCANPST utility.

  3. Didn’t he pull this same sort of thing a while ago? I seem to remember something about corrupted e-mails a while back.

  4. Elmbrook has issues with open record requests to a much larger degree.

  5. Shawn, yes, he did.

  6. Here’s a follow up I just sent to Berg:

    Mr. Berg,

    I have discovered that I can request compliance through the Waukesha District Attorney. From a Compliance Outline prepared in 2007:

    XIII. Enforcement and Penalties.
    A. Mandamus. If an authority withholds a record or part of a record, or delays granting access to a record or part of a record after a written request for disclosure is made, the requester may:
    1. Bring an action for mandamus asking a court to order release of the record;
    2. Submit a written request to the district attorney of the county where the record is located or to the Attorney General requesting that an action for mandamus be brought asking the court to order release of the record to the requester.

    Also, there may be penalties to you should the court intervene.

    One last chance, are you able to produce the e-mail to you and from you regarding the fire station study from an individual where you later called their workplace? I will follow through on my request with outside counsel if you do not reply with the records by Tuesday, April 15, 2008.

    Thank you for your very prompt attention to this matter,

    Cindy Kilkenny

  7. 5. An arbitrary and capricious delay or denial exposes the custodian to punitive damages and a $1,000 forfeiture. Wis. Stat. § 19.37. See Section XII of this outline for further information.