March/April 2023 Issue

Also in this issue: Wisconsin Supreme Court Addresses Dark Store Evidence & Presumption of Correctness in Tax Assessment Claims     |     Public Service Commission Rules on Third Party Decisions     |     Public Service Commission Distributes $10 Million in Energy Innovation Grants     |     Denial of Permit Reversed on Certiorari Review as Being Based on an Incorrect Theory of Law

Wisconsin Public Records Law: Risk Of Attorney’s Fees Remains, Despite Voluntary Release

Maximilian J. Buckner , Eric B. Hagen | 03.30.23

As those familiar with public records requests may know, Wisconsin’s Public Records Law allows a requester to sue for the release of records when requested records are withheld or delayed. If the requester ​“substantially prevails,” the court will award reasonable attorney’s fees and other actual costs related to accessing the record.¹ When records are voluntarily released after a suit is pending, often the only issue remaining is the question of attorney’s fees. In the past, courts examined if a suit was a cause in-fact for a record’s voluntary release to determine whether to award attorney’s fees. Last year, the Wisconsin Supreme Court released its decision in Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, which imposed the Prevailing-Party Test to determine if attorney’s fees should be awarded in such cases. 

Under the Prevailing-Party Test, a requester is required to ​“obtain a judicially sanctioned change in the parties’ legal relationship” to be awarded attorney’s fees, such as an order for the record’s release. However, the Supreme Court was unable to fully apply this test in Friends of Frame Park, as the Court ruled that the voluntarily released records were initially properly withheld pursuant to the competitive and bargaining reasons exception to the public records law.² Thus, questions remained whether the Prevailing-Party Test would even allow an award of attorney’s fees when previously improperly denied records are voluntarily released or whether the doctrine of mootness applied to bar an award of attorney’s fees. 

In a recent case, Wisconsin State Journal et al, v. Wisconsin State Assembly et al, No. 2021AP1196, the Wisconsin Court of Appeals had the first opportunity to apply the Prevailing-Party Test to determine whether attorney’s fees should be awarded when previously improperly denied records are voluntarily released.

In Wisconsin State Journal, multiple newspapers requested public records relating to a sexual harassment complaint and investigation involving a Wisconsin State Assembly employee and a State Representative. The Assembly denied the request by providing a ​“High Level Summary for S.G. Complaint.” The summary stated an employee made a complaint that the State Representative verbally sexually harassed the employee, that there was an investigation, and remedial actions were required. The Assembly stated it applied the ​“public records balancing test and determined that the public interest in treating employee internal complaints as confidentially as possible and respecting the privacy and dignity of the complainant/​witnesses outweighed any public interest in disclosing.” The newspapers sued, seeking a declaration the Assembly violated the public records law, asking for a mandamus order directing the Assembly to release the records, and asking for attorney’s fees. 

Months after the lawsuit was filed, the Assembly employee, through an interview with one of the newspapers, revealed details about the sexual harassment complaint while remaining anonymous. Due to this changed circumstance, the Assembly subsequently voluntarily disclosed the complaint, investigation report, and a printout of Facebook Messenger texts, with redactions. The Assembly justified the redactions ​“to protect the identity” of the Assembly employee and witnesses and to protect ​“protected health information” of the State Representative. The newspapers filed an amended complaint, alleging the records were wrongfully withheld, challenging some of the redactions of the voluntarily released records and, again, asking for attorney’s fees. 

The Wisconsin Court of Appeals found that the Assembly violated the public records law twice. First, when it initially denied the release of any records in response to the public records request, and second, when it redacted the identities of a legislator and staffer who were not witnesses to the sexual harassment or interviewed during the investigation. In finding the first violation, the Court emphasized the Assembly’s lack of detail in its denial based on the balancing test. When there is no exception to disclosure of a record, a record custodian must perform the balancing test, which requires a consideration of all relevant factors to determine whether the public policy interests favoring nondisclosure outweigh the public policy interests favoring disclosure, notwithstanding the strong presumption favoring disclosure. The Assembly failed to properly apply the test in both instances. The Assembly’s denial should have described the responsive records and applied the balancing test to each record individually with policy reasons for denial specific to each record, rather than relying on the summary it provided. This is necessary to provide the requester with sufficient notice of the grounds for denial to enable the requester to prepare a challenge to the withholding. The balancing test also requires operating under a presumption in favor of disclosure, rather than in favor of non-disclosure as the Assembly did here. 

The Court awarded attorney’s fees for each failure under the Prevailing-Party Test. The Assembly had argued that, since the Assembly had voluntarily provided the records after suit was filed but before a court ordered release, the issue regarding the initial denial was moot. If the issue is moot, it argued, the newspapers did not obtain a judicially sanctioned change in the parties’ relationship so there is no ​“prevailing-party,” which would result in no award of attorney’s fees.

The Court denied the Assembly’s argument and found that the newspapers’ claim on the initial denial for the release of records was not moot and, even if moot, several exceptions to mootness applied. The Court noted that Friends of Frame Park did not address whether the exceptions to mootness would apply to allow a court to reach the merits of whether an initial denial was improper.³ The Court ruled that a case is not moot if a ruling on the issue would have a practical effect on a legal consequence, and that the award of attorney’s fees in the mandamus statute is a legal consequence. In addition, the Court found the following exceptions to mootness apply: the issue is of great public importance, the issue arises often and a decision from the court is essential, the issue is likely to recur and must be resolved to avoid uncertainty, and the issue is likely of repetition and evades review. 

One of the three appellate judges, Judge Fitzpatrick, disagreed with the Court regarding the mootness issue. Judge Fitzpatrick argued that the issue regarding the initial denial of release of records was moot because the Assembly later provided the records voluntarily. Therefore, Judge Fitzpatrick disagreed with awarding attorney’s fees for that issue. Judge Fitzpatrick opined that for attorney’s fees to be awarded, the court must grant relief to the newspaper— in this instance, order the Assembly to provide the records. However, since the records were voluntarily released, even though delayed, attorney’s fees are not permitted.

While the majority’s application of the Prevailing-Party Test in Wisconsin State Journal should provide clarity on whether attorney’s fees can be awarded when previously denied records are voluntarily released, the lack of a unanimous decision may suggest otherwise. If anything, Wisconsin State Journal shows the limitations of the Friends of Frame Park decision. One cannot help but wonder whether the Wisconsin Supreme Court will further clarify the application of the Prevailing-Party Test or if the legislature will amend the law regarding attorney’s fees. The State Senate has already introduced a bill that aligns with the Freedom of Information Act, which would allow attorney’s fees if a court finds the filing of a lawsuit was a substantial factor for the voluntary release of records.⁴ Those who handle public records requests should remain mindful of such potential developments in the public records law.

Municipalities should take away two things from Wisconsin State Journal. First, in responding to open records requests, it is important to properly apply the balancing test on a case-by-case basis, with a presumption in favor of disclosure. The response must be thorough and specific, with policy interests specific to each responsive record that is withheld or redacted. It is unacceptable to provide a summary of the information contained in responsive records in lieu of the actual responsive records. Second, until otherwise clarified by the courts or the legislature, municipalities cannot simply voluntarily release records after a suit is filed to avoid paying the requester’s attorney’s fees. Based on the application of the Prevailing-Party Test in Wisconsin State Journal, almost no public records case will be found moot, so attorney’s fees will be available in public record cases if the court finds the initial denial or delay to be improper. Therefore, it is crucial to correctly respond to public records requests from the start to avoid risking an award of attorney’s fees.