September/October 2020 Issue

Also in this issue: Get the Lead Out, the Sequel New DNR Private Lead Service Line Replacement Program and Updates on PSC Financial Assistance Programs     |     Michael May Joins Boardman Clark

Applicability of the “Competitive and Bargaining Reasons” Exception to Wisconsin’s Public Records Law

Eric B. Hagen | 09.25.20

In a recent case, Friends of Frame Park, U.A. v. City of Waukesha, 2019AP96, the Wisconsin Court of Appeals examined the applicability of the Open Meetings Law exception in Wis. Stat. § 19.85(1)(e) for ​“competitive or bargaining reasons” to Wisconsin’s Public Records Law.

This case stems from the City of Waukesha’s plan to build and operate a baseball stadium in Frame Park. The Friends of Frame Park (“Friends”), made up of citizens, property owners, and taxpayers, organized to track how the stadium used taxpayer funds due to concerns that the City would contract with private entities to run the stadium and the baseball team.

In October 2017, Friends made a public records request to the City for any letters of intent, memoranda of understanding, or lease agreements between Big Top Baseball and the City. The City denied the request citing ​“competitive or bargaining reasons,” and provided two justifications for nondisclosure: 1) competitive harm due to another entity competing for a baseball team and 2) the need for common council review prior to disclosure to negotiate favorable terms.

In December 2017, Friends filed suit for the release of the records and for attorney’s fees. The next day, the common council met, and one day later, the City attorney emailed to Friends a draft contract between Big Top Baseball and the City. Because the City voluntarily released the record, the only issue for the appellate court was whether Friends was entitled to attorney’s fees.

Wisconsin’s Public Records Law allows a requester to sue for the release of records when requested records are withheld or delayed, after a written request for disclosure is made. If the requester ​“substantially prevails,” the court will award reasonable attorney’s fees and other actual costs related to accessing the record. When records are released after a suit is pending, as in this case, the only issue remaining is the question of attorney’s fees. In previous cases, courts have looked to whether the suit was a cause in-fact of the record’s release to determine whether a requester ​“substantially prevailed.”

In this case, the records were not released due to the Friends’ filing suit, but rather because the City claimed the public records exception was no longer applicable. The Court held that when a public record is released while a suit is pending and that release is due to a public records exception no longer being applicable, the key consideration is whether the exception was properly invoked in the initial denial, rather than whether the suit caused the release.

The Court found that the City’s reliance on the ​“competitive or bargaining reasons” exception in Wis. Stat. § 19.85(1)(e) was unwarranted and led to an unreasonable delay in the record’s release. Consequently, even though the lawsuit was not an actual cause of the release, Friends ​“substantially prevailed” and was entitled to some portion of its attorney’s fees.

Municipalities wishing to invoke the ​“competitive or bargaining reasons” exception when responding to public records requests should be sure to adhere to the following general principles identified by the Court: 

• The exception can be invoked to prevent disclosure of a negotiation strategy or other insider information that is not available to one party in a negotiation. 
• The exception cannot be invoked merely because a private entity desires confidentiality; because the public will later have the opportunity to provide input; or to prevent competition where the other side remains free to negotiate with potential competitors. 
• For public policy reasons, the exception should generally not be used to prevent competition among governmental entities, as this could harm both consumers and those citizens interested in the workings of their government.

This case should remind municipalities that the mere fact of a closed meeting does not justify a blanket nondisclosure of all meeting documents. Rather, there must be a specific showing as to why ​“competitive or bargaining reasons” require nondisclosure.