Sunday, December 4th, 2022
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MADISON — A recent ruling by the Wisconsin Supreme Court made securing open government a more expensive — and daunting — proposition for citizens, media and any one else seeking public records.

The Wisconsin Institute for Law & Liberty is urging the Legislature to fix the state’s open records law in order to fix the court’s ruling and guarantee greater transparency.

“Without action, Wisconsin’s public records laws could be rendered toothless,” said Lucas Vebber, WILL’s deputy counsel.

Last month, the Wisconsin Supreme Court issued a decision in the open records dispute, Friends of Frame Park, U.A. v. City of Waukesha, clarifying what it means to “prevail” in an open records case. To “prevail” means, among other things, that a court can award attorney’s fees. But the decision in Frame Park made clear that a party can only “prevail” under Wisconsin law when a court makes “a final decision on the merits” and “grants a judgement for one party over the other.”

That’s problematic, to say the least.

The court’s interpretation of “prevail” could significantly impact enforcement of Wisconsin’s public records law. Under the Frame Park analysis, the statute does not clearly allow parties to recoup attorney’s fees if the governmental entity eventually releases the records between the time a suit is filed and the time the circuit court makes a decision.

“In practice, this may make it prohibitively expensive for Wisconsinites to enforce open records requests that government actors refuse to comply with, thus thwarting the transparency and accountability that open records laws are meant to secure,” WILL notes.

Justice Brian Hagedorn, who ran as a conservative but has often sided with the court’s three liberals, wrote the majority decision — this time joining the court’s three conservatives. He noted the court’s analysis and conclusion “arguably raises other statutory questions.”

“Prior court of appeals cases have held that a requester could still pursue attorney’s fees even if the records have been voluntarily turned over,” Hagedorn wrote.

Open government advocate Tom Kamenick said the 4-3 decision is horrible. He said average citizens and media outlets rely on fee shifting statutes, and the state Supreme Court “dramatically decreased their effectiveness.”

“Custodians now have every incentive to delay and deny requests frivolously, because they know if they ever got sued, they could just turn the records over with no consequences,” said Kamenick, president and founder of The Wisconsin Transparency Project. “It will be far, far harder for attorneys to take these cases on a contingency, too, so custodians know they are even less likely to ever get sued. So even if you aren’t looking to file records lawsuits, you can fully expect custodians to delay and deny without a good reason a lot more often.”

Vebber and Samantha Dorning, Bradley Foundation Legal Fellow at WILL, are proposing basic legislative reforms to make clear what it means for a litigant to “prevail” in situations where a records holder releases records after a suit has been filed.

  • Add a test into the statute that would simply require the court to find that the litigation itself caused the records to be released in order to award fees.
  • Alternatively, state law could adopt the same definition of “prevail” that exists under federal law, litigants will be able to recover fees in the event the government provides records after a suit has been filed.
  • In addition, state law could allow other forms of relief in public records suits beyond simply a mandamus action. In the open meetings context, for example, the law may be enforced by seeking “legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment, as may be appropriate under the circumstances.”

The Milwaukee-based civil rights law firm says adopting these type of changes would shift the balance of power back to the public, rather than the government entity.

“The Wisconsin legislature should make it a priority to act to ensure public officials are transparent and accountable to voters and taxpayers,” Vebber said.

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