A conservative law firm has taken the rare step of pushing back against a recent Republican-backed majority decision in the Wisconsin Supreme Court that adds limits on when those who search public records are entitled to attorney fees — a move the group says could render the state’s open archives law “toothless.”
In a policy brief released Thursday, the Wisconsin Institute for Law and Liberty called on the Republican-led state legislature to close loopholes in Wisconsin’s open records law to ensure that government entities are held accountable if they withhold requested public records.
The brief follows a 4-3 ruling earlier this month by the state’s high court that found community group Friends of Frame Park were not entitled to attorneys’ fees after suing the City of Waukesha for public documents which the city later released before being ordered to do so. by a court. The court’s four conservative justices approved the decision, with its three liberal justices dissenting.
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Previously, record custodians who voluntarily provided requested records after being sued could still be required to pay attorneys’ fees if the lawsuit resulted in the records being released.
“Historically, once the lawsuit was filed, the plaintiff could recover the attorney’s fees they incurred to file the lawsuit, even if the government agency quickly backed down and turned over the records before the judge ruled. on the case,” according to the brief. “This has served as a significant brake on transparency and accountability.”
However, the state Supreme Court’s ruling means that those requesting public records can only recover attorney’s fees if a court rules on the merits of a case. But voluntarily turning over records usually raises a case, meaning those fees may never be recouped.
The court ruling “made it clear that the wording of the law may not allow recovery of costs in such cases – therefore, government actors potentially now have a reason not to turn over records quickly,” WILL wrote. in his memoir.
Open case advocates, including the Wisconsin Transparency Project and the Wisconsin Freedom of Information Council, blasted the court’s decision earlier this month, with Tim Kamenick, president and founder of the Transparency Project and former WILL attorney, l calling it “a dark day for transparency”. in Wisconsin.
“The law doesn’t say a plaintiff must get a court order, it says a plaintiff must ‘prevail,'” Kamenick said at the time. “When you get the records you chased to get, you prevailed – you got the result you wanted.”
In his brief, WILL urges the Legislature to clarify in the State Open Records Act that the plaintiff prevails in an open record case when a government agency releases the record and the court determines the trial that led to the release of the archives. Another option provided by WILL is to allow other forms of relief in public record lawsuits beyond a court ordering a public official to perform a task, which is currently the only permitted relief option. by state law.
“Without action, Wisconsin’s public records laws could be rendered toothless,” WILL’s associate attorney Lucas Vebber said in a statement. The Legislature “should make it a priority to act to ensure public officials are transparent and accountable to voters and taxpayers.”
The Wisconsin Court of Appeals in 2020 overturned a 2018 Waukesha County Circuit Court order that upheld the City of Waukesha’s original decision to deny the records.
Friends of Frame Park asked the City of Waukesha for a copy of the draft contract between the city and Big Top before a decision was made. The city denied the request, citing ongoing negotiations.
A few months later and two days after the city filed a lawsuit, Waukesha handed the contract over to the band, but Friends of Frame Park sued and demanded attorney fees. The city had argued that the case was then moot and that it should not be responsible for the costs.