The Supreme Court deals a blow to open cases
Open case advocates are responding Wednesday to a Wisconsin Supreme Court ruling that ends 40 years of precedent allowing case plaintiffs to recover attorney fees if they are successful in obtaining disclosure of the cases.
Anyone can submit a request to open a case, whether it be with a police department, local elected official, school district, health department or other public entity. . Once filed, the request is sent to a custodian, whose responsibility it is to locate, redact and release the documents. But custodians can charge hundreds of dollars just to locate the documents or pretend the documents can’t be located. In such cases, citizens can find an attorney who knows public records law and file a lawsuit. Most of the time, if they win, the case is made public and attorney fees are paid. In some cases, after a lawsuit is filed, a custodian may suddenly voluntarily provide the records.
In these cases, says Tom Kamenick, president and founder of the Wisconsin Transparency Project, plaintiffs can still get their attorneys’ fees paid if the lawsuit is “a cause” for the release. The Transparency Project is the only law firm in the state dedicated exclusively to enforcing open case and open meeting laws at a low cost to clients.
“Complainants can now only get fees if a court makes a decision on the merits of a case,” the Wisconsin Transparency Project said in a statement. “But because the ‘voluntary’ surrender of records is generally debatable, it remains unclear under what circumstances a court will decide whether an initial refusal was unlawful.”
“That’s not what the state legislature intended or wrote when it enacted the Open Records Act in 1982,” Kamenick adds. “The law doesn’t say a plaintiff must get a court order, it says a plaintiff must ‘prevail’. When you get the records you chased for, you’ve prevailed – you’ve won what you wanted.
Bill Lueders, president of the Wisconsin Freedom of Information Council, said in a statement that the decision “is a blow to the state’s traditions of open government.” Lueders continues that “this undermines the law’s open records provision that allows litigants to recover actual costs and attorneys’ fees in cases where access to records is wrongfully denied. The court’s conservative majority created new opportunities for authorities to deny the public access to public information.
Judge Brian Hagedorn wrote in the ruling that “this is the first opportunity for this court to fully analyze what it means for a party to ‘prevail in whole or in substantial part,'” under Wisconsin law. “Faced with these different approaches, we conclude that we must return to the framework of analysis for a framework more closely linked to the legislative text.”
The case arises from Friends of Fram Park v. City of Waukesha. In October 2017, Friends of Frame Park sent the city a request for documents asking for the city’s plans to bring amateur baseball to Waukesha. The request also included letters of intent (LOI), memoranda of understanding (MOU) or lease agreements between the 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’s contract. The fact that the city was going to discuss the contract at an upcoming meeting helped compel the release of the document a day after the meeting.
Justice Jill Karofsky expressed a dissenting opinion, joined by Justices Ann Bradley and Rebecca Dallet. “The sun is an excellent disinfectant,” Karofsky’s dissent began. “That’s the theory behind Wisconsin’s public records laws. Shed light on the work product of government and citizens will engage and hold their representatives to account, realizing a purer democracy. A majority of this court defeats that purpose, sowing clouds as it eviscerates the mandatory fee-shifting provisions that are integral to keeping sunshine in our great state. By reinterpreting the law to reward government actors for strategically freezing public access to records, today’s decision will chill the public’s right to open government.
Karofsky further chastised the majority of the court for siding with the City of Waukesha’s “apology” for not releasing the contract. “A majority of this court is tarnishing Wisconsin’s proud history of open government by turning a routine request for records into a catalyst to decimate Wisconsin’s fee transfer structure.” She pointed out that “without a robust fee-shifting mechanism in public records laws, requesters of records face a no-win scenario when a request is denied. They can either acquiesce in the government’s potentially illegal withholding of the record or file a mandamus suit to enforce their right to the record at the risk of paying substantial legal fees.
Lueders underscored the seriousness of the change in the Court’s interpretation of the law. “Indeed, as Justice Karofsky writes in his dissent, the ruling may actually ‘deter government actors from making timely disclosures, eviscerating the very purpose of public records laws’.” In Wisconsin, there have been instances of government actors discussing potentially illegal ways to price fraud records requests to keep files from getting out.
He continued, “The Open Records Act states that state and local authorities in Wisconsin must provide requested records ‘as soon as possible and without delay.’ The new normal created by this decision is “when you feel like it, even after being sued for non-compliance”. We hope 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 making it clear that, like federal FOIA lawsuits, plaintiffs prevail when they obtain the records they seek after filing a complaint.”
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