Conservative law firm warns changing interpretation of open records law could mean less power for the public

A conservative law firm is calling on Wisconsin lawmakers to clarify the state’s public records law to allow people who sue for records to continue to recover their legal costs.

In a briefing note released Thursday, the Wisconsin Institute for Law and Liberty said a recent decision by the Wisconsin Supreme Court in a public records case against the city of Waukesha challenged past practice regarding public records proceedings.

Under state law, a person who sues a government entity to compel it to release public records has the right to have their attorney’s fees covered if they “win” or win the case. Lucas Vebber, associate attorney for WILL, said that in some open-file cases, government officials have chosen to release the files rather than fight the lawsuit. Vebber said state courts have treated this as the plaintiff’s “prevailing” if the lawsuit is what caused the official to change.

But Vebber said it was now unclear if that standard would continue.

“In the recent Wisconsin Supreme Court case, they looked at the meaning of the word ‘prevails’ in the context of the public record and they came to the conclusion that to prevail requires something more. Qu ‘It basically needs a final victory sanctioned by justice,” Vebber said.

He said a case cannot reach that final judgment if it is dropped because the records are released. It is therefore unclear whether applicants for registration will be able to recover their legal costs when a case is dropped.

Vebber said that could have a chilling effect on these cases being dropped to begin with. He said most lawyers don’t charge clients up front on open cases because they have confidence that they can recoup their fees.

“If you have fewer opportunities to recover costs, you will have fewer lawyers willing to take these cases. If you have fewer lawyers willing to take these cases, you will have fewer cases filed. And fewer cases means fewer people challenging what may be illegal government action,” Vebber said.

Bill Lueders, president of the Wisconsin Freedom of Information Council, said he was also concerned about the impact of the state Supreme Court’s decision.

Sign up for daily news!

Stay informed with WPR’s email newsletter.

“It will also encourage public authorities to simply delay releasing the case until someone sues them and then hand it over without consequences,” Lueders said. “There are a lot of bad things that will happen as a result of this decision and a lot of good reasons why it should be reconsidered or why the Legislature should take action to minimize the damage.”

Lueders said protecting open government in Wisconsin is “a truly bipartisan issue” and concerns over the state Supreme Court’s ruling have united progressive and conservative groups in the state.

He said the group that filed the case recently decided by the Wisconsin Supreme Court, the Friends of Frame Park, filed a motion for reconsideration this week, arguing that the new standard set by the court was not part of the original case.

In their policy brief, WILL asks the state legislature to consider three ways to more clearly define the law to avoid confusion in the future. The first suggests codifying the test that courts have already used, making it clear that if the court finds that the litigation caused the official to release the documents, the plaintiff “prevails” in the case and can be awarded costs. .

The second option would create the same result but adopt the language used in the federal Freedom of Information Act.

The third avenue for change could be to allow people requesting documents to use other legal actions to hold government officials accountable. Vebber said the current law only allows plaintiffs to bring a type of lawsuit to compel a public official to fulfill an obligation that is incumbent on him or her. If the official is doing his duty by releasing the case, the plaintiff does not have such a strong case to pursue the case, he said.

“What we proposed was to treat the Public Records Act like the Open Meetings Act, and just increase the number of civil actions that could be used to enforce the Public Records Act, things like getting an injunction or a declaratory judgment that the public entity broke the law,” he said.

With the state legislature not currently in session, Vebber said WILL hopes lawmakers will pass one of the proposed changes when they return early next year.