by Erik Gunn, Wisconsin Examiner
March 19, 2023
A new bill in the state Legislature would raise the stakes for government agencies that stall requests made under Wisconsin’s open records law.
The legislation, the subject of a Senate hearing Thursday, would roll back a 2022 Wisconsin Supreme Court ruling relating to attorneys’ fees when someone making a records request is denied, or simply ignored, by the government entity holding the records, and files a lawsuit in response.
The state open records law states that a person who hires a lawyer after being denied access to a public record and subsequently “prevails” in obtaining it can be repaid for the attorney’s costs.
The definition of “prevails” shifted, however, in a July ruling by the high court in the case Friends of Frame Park v. City of Waukesha, witnesses said at Thursday’s hearing before the Senate Committee on Government Operations, Elections and Consumer Protection.
“Since the modern public records law was enacted in 1982, requesters were generally deemed to have prevailed if the requested records were either ordered to be released by the court or voluntarily released by the [records] custodian following the filing of the court action, provided the requester could prove to the court that the action resulted in the release,” said Sen. Duey Stroebel (R-Saukville).
But in a 4-3 vote in July, the Supreme Court narrowed the definition of the term, ruling that the agency only has to pay the requester’s attorneys’ fees if a judge orders the records to be released.
Stroebel is the Senate author of SB-117, a bill to nullify that ruling and define “prevail” to mean if records are turned over through a court order or voluntarily after the requester sues, “if the court determines that the lawsuit was a substantial factor in causing the release,” Stroebel said.
A companion Assembly bill hasn’t been filed yet, but the legislation has bipartisan support in both chambers of the Legislature.
State Rep. Todd Novak (R-Dodgeville), a former newspaper editor and the lead Assembly sponsor of the bill, said the ruling gives governments an incentive to delay turning over records and discourage requesters from going to court and bearing the legal expense themselves.
“A dangerous trend may arise when the government entities may feel compelled to withhold records knowing that the public requester will need to consider whether the cost of litigation is worth the release of records,” Novak said.
“Essentially, you’re setting up a system where municipalities can hold records saying, ‘I don’t have to turn this over. And if they want to take me to court, you know, then we’ll turn it over.’ That’s essentially what we’re opening the door to here.”
Pat Riley, president of the Wisconsin Newspaper Association and publisher of three weekly newspapers in south central Wisconsin, said the ruling would undercut open government in the state.
“If that is left to stand, this decision would make it financially difficult to legally pursue a contested request by denying the recovery of attorney fees,” he said. “To put it quite simply, we could no longer afford the cost of keeping government accountable when necessary.”
Thomas Kamenick, an attorney who specializes in handling open records cases for a wide range of clients, including the Wisconsin Examiner, said that neither the state Department of Justice nor local district attorneys pursue open records claims, although they have the authority to do so.
As a result, access to public records has been “left up to enforcement by the private attorneys, but there are very few of us doing that work,” Kamenick said. “It’s typically done under a contingency because often these are individuals or small groups, local watchdog groups, who have limited resources, and they’re not seeking particular damages, so they can’t afford to pay the attorneys the money it takes to prosecute one of these cases to its fullest extent.”
Kamenick said lawyers have historically not abused the fee system: “I don’t think I’ve ever seen one where the delay on the request was not egregious that sought attorneys’ fees.”
The legislation is also supported by the Wisconsin Broadcasters Association, the Wisconsin Institute for Law and Liberty, the Wisconsin Freedom of Information Council, and other groups that have made extensive use of the state’s open records law.
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