The Wisconsin Capitol at night. (Photo | Isiah Holmes)
Open records advocates are responding to a Wisconsin Supreme Court ruling Wednesday that brings to an end 40 years of precedent allowing records requesters to recover attorneys’ fees if they successfully sue to compel the release of records.
Anyone can file an open records request whether to a police department, a local elected official, school district, health department, or other public entity. Once it’s filed, the request is sent to a custodian, whose responsibility it is to locate, redact, and release the records. But custodians might charge hundreds of dollars just to locate the records or claim the records can’t be located. In such cases citizens can find a lawyer who’s familiar with open records law and sue. Most of the time, if they win, the record is released and the attorney’s fees are satisfied. In some cases, after a lawsuit is filed, a custodian may suddenly provide the records voluntarily.
In these instances, Tom Kamenick, president and founder of the Wisconsin Transparency Project explains, requesters can still get their attorneys’ fees paid if the lawsuit is “a cause” of the release. The Transparency Project is the state’s only law firm dedicated exclusively to enforcing the Open Records and Open Meetings laws, at a low cost to clients.
“Now requesters can only get fees if a court issues a ruling on the merits of a case,” the Wisconsin Transparency Project said in a statement. “But because ‘voluntarily’ turning over records typically moots a case, it remains unclear under what circumstances a court will rule on whether an initial denial was illegal.”
“This is not what the state legislature intended or wrote when they enacted the Open Records Law in 1982,” Kamenick adds. “The Law doesn’t say a plaintiff has to get a court order, it says a plaintiff has to ‘prevail.’ When you get the records you sued to obtain, you’ve prevailed — you’ve won what you wanted.”
Bill Lueders, president of the Wisconsin Freedom of Information Council says in a statement that the ruling “is a body blow to the state’s traditions of open government.” Lueders continues that, “it undermines the provision in the open records law that allows litigants to recover actual costs and attorney’s fees in cases in which access to records is wrongfully denied. The court’s conservative majority has created new opportunities for authorities to deprive the public of access to public information.”
Justice Brian Hagedorn wrote in the decision that “this is the first occasion for this court to fully analyze what it means for a party to ‘prevail in whole or in substantial part,’” under Wisconsin statutes. “Faced with these varying approaches, we conclude we must return to the analytical framework to one more closely tethered to the statutory text.”
The case stems from Friends of Fram Park v. City of Waukesha. In October 2017, Friends of Frame Park sent the city a records request seeking the city’s plans to bring amateur baseball to Waukesha. The request also included Letters of Intent (LOI), Memorandum of Understanding (MOU), or lease agreements between baseball leagues and the city. Two weeks later, the city responded to the request and provided all the requested documents except for a draft contract. The city explained its reasoning for withholding the contract because there was another entity competing for the city contract. The fact that the city was going to discuss the contract during an upcoming meeting helped compel the document’s release a day after the meeting.
Justice Jill Karofsky offered a dissenting opinion, joined by Justices Ann Bradley and Rebecca Dallet. “Sunshine is a great disinfectant,” Karofsky’s dissent began. “That’s the theory behind Wisconsin’s public records laws. Shine light on the government’s work product and citizens will engage and hold to account their representatives, achieving a purer democracy. A majority of this court frustrates that goal, seeding clouds as it eviscerates the mandatory fee shifting provisions integral to keeping the sun shining in our great state. By reinterpreting the law to reward government actors for strategically freezing out the public’s access to records, today’s decision will chill the public’s right to an open government.”
Karofsky further admonished the majority of the court for siding with the city of Waukesha’s “excuse” for not releasing the contract. “A majority of this court tarnishes Wisconsin’s proud history of transparent government by transforming a routine records request into a catalyst to decimate Wisconsin’s fee shifting structure.” She stressed that, “without a robust fee shifting mechanism in public records laws, record requesters face a no-win scenario when a request is denied. They can either acquiesce to the government’s potentially unlawful withholding of the record, or they can bring a mandamus action to enforce their right to the record at the risk of substantial legal fees.”
Lueders emphasized the gravity of the change in the Court’s interpretation of the law. “Indeed, as Justice Karofsky writes in dissent, the ruling may actually ‘disincentivize government actors from making timely disclosures, eviscerating the very purpose of the public records laws.’” In Wisconsin, there have been cases of government actors discussing potentially illegal ways to price gouge records requests to keep files from getting out.
He continued, “the Open Records Law states that state and local authorities in Wisconsin must provide requested records ‘as soon as practicable and without delay.’ The new standard created by this decision is ‘whenever you feel like it, even after you have been sued for not complying. We hope that the governor and Legislature will look for ways to minimize the potential damage caused by this decision.”
Kamenick called it “a dark day for transparency in Wisconsin.” Like Lueders, Kamenick called on the Legislature and the governor to, “immediately pass legislation clarifying that, like federal FOIA lawsuits, requesters prevail when they obtain the records they sought after filing a lawsuit.”
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