Lawmakers’ bill moves to strengthen public records law
MADISON - A proposed bill aimed at deterring government officials from delaying the release of public records would allow requesters to recover attorney’s fees if the documents they seek are handed over after a lawsuit is filed.
The bill, proposed Tuesday by Republicans Sen. Duey Stroebel and Rep.
Todd Novak, upends a Wisconsin Supreme Court decision from 2022 that held that if government bodies turn over records voluntarily, after being sued but before a judge takes action, the requesters have not prevailed under the law and can no longer seek attorneys fees.
Instead, the Republican measure would lift those limits and allow requesters of public records to recover attorney’s fees if a judge determines the requester’s lawsuit was a substantial factor in the records’ release.
“This legislation is critical to ensuring our public records law functions as intended when a government actor gets taken to court for failing to comply with the law,” Stroebel, R-Town of Cedarburg, said in a statement.
“Absent the restoration of longstanding precedent this bill would achieve, the taxpayer-funded entities who have shown a tendency for flouting public records requests could be further emboldened to skirt the law.”
Government transparency advocates who characterized the 2022 Supreme Court ruling as gutting the spirit of the state’s public records law.
Bill Lueders, president of the Wisconsin Freedom of Information Council, said Tuesday the proposal from Novak and Stroebel “deserves bipartisan support.”
“The Wisconsin Supreme Court overstepped in its ruling on the Friends of Frame Park case and this bill will fix the problem it created. It’s as simple as that,” Lueders said.
“I would urge policymakers and pause for a moment and realize that this is a piece of legislation that they could join together in passing. How often does that happen? Not often enough.”
The proposal was drafted in conjunction with the conservative Wisconsin Institute for Law & Liberty. Lueders said their work “shows a great deal of integrity on its part, given that this was a decision rendered by the court’s conservative majority.”
“It is the government’s duty to respond to citizens efficiently and in a timely manner — this bill ensures accountability when government tries to avoid transparency,” WILL attorney Lucas Vebber said in a statement.
In a case that started when the City of Waukesha tried to bring summer league baseball to Frame Park in 2017, a divided court found the city didn’t violate the law by withholding a draft contract for two months after a citizens group requested it under the open records law.
More crucially, the court also held that if government turns over records voluntarily, after being sued but before a judge takes action, the requesters have not prevailed under the law and can no longer seek attorneys fees.
“Absent a judicially sanctioned change in the parties’ legal relationship, attorney’s fees are not recoverable under § 19.37(2)(a),” Justice Brian Hagedorn wrote for the majority.
Lueders called the ruling a “body blow to the state’s traditions of open government.”
Wisconsin’s public records law requires government officials to provide requested records as soon as practicable and without delay.
Hagedorn, who often acts as a swing vote, wrote the majority opinion. He noted past Court of Appeals decisions allowed recovery of attorney fees, even if a custodian voluntarily turned over the records, on the theory a lawsuit caused the compliance.
His opinion tracked how that standard, once used in federal courts in Freedom of Information Act cases, has been withdrawn in favor of the new judicial action standard.
Hagedorn did “reserve for another day” whether a judge could decide to issue a ruling in a public records case, even after a custodian’s voluntary compliance, and whether that might allow requesters to recover attorney fees.
A concurring opinion by Justice Rebecca Bradley said the Friends of Frame Park lawsuit was moot as soon as the city turned over the draft contract, and the court shouldn’t have considered the merits.
She also voiced support for overturning several Court of Appeals decisions she said created a “metamorphosis” of the public records law.
Chief Justice Annette Ziegler and Justice Patience Roggensack joined the concurrence. They and Rebecca Bradley joined various parts, but not all, of Hagedorn’s lead opinion.
Hagedorn said even under that standard, Waukesha would prevail because it did not violate the open records law to begin with. The majority concludes that the city properly took time to apply a balancing test and decided, initially, “that strong public interest in nondisclosure — namely, protecting the City’s negotiating and bargaining position” outweighed the public interest in disclosure.
The case started with the city’s efforts in 2017 and early 2018 to build a baseball stadium at Frame Park for a summer league called Big Top Baseball.
Friends of Frame Park opposed the plan on legal and aesthetic grounds and wanted to see the proposed contract before any decision was made. The city denied the initial request in October 2017, citing the ongoing negotiations exception to the open records law.
The group sued in December 2017, and two days later, following a City Council meeting, the city released the draft contract and argued that the lawsuit was now moot.