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Wisconsin Supreme Court Substantially Alters the Entitlement to Attorney Fees in Public Records Cases
On Wednesday, July 6, 2022, the Wisconsin Supreme Court issued a ruling in Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57 that substantially changes the award of attorney fees in Public Records cases. The case involved a Writ of Mandamus action to compel release of public records. The Court held, in order to “prevail in whole or substantial part” for the award of attorney’s fees, “a party must obtain a judicially sanctioned change in the parties’ legal relationship.” Id. at ¶ 3. This means, if a records custodian complies with the request after the action is commenced but before the judge issues a ruling, the records custodian is not required to pay the requestor’s attorney’s fees.
The Court’s decision was the result of a public records dispute between a local non-profit and the City of Waukesha regarding municipal efforts to bring an amateur baseball team to the City. Id. at ¶ 5. On October 9, 2017, the City received a public records request from Friends requesting Letters of Intent, Memorandum of Understanding, and/or Lease Agreements between Big Top Baseball and/or Northwoods League Baseball and the City of Waukesha from May 1, 2016 to the present date of the letter. Id. Approximately two weeks later, the City tendered all responsive documents except for one: a draft contract with Big Top Baseball. Id. In a letter provided with the responsive documents, the City explained its decision to withhold the draft contract was temporary, and due to ongoing negotiations of the contract itself. Id. The City further clarified its rationale pursuant to the requisite balancing test, and explained the document would be released once the Common Council took action, which was then scheduled for December 19, 2017. Id. at ¶ 6. Friends filed a Writ of Mandamus to compel the City’s release of the draft contract on December 18, 2017, and the City—pursuant to its original representation—released the contract after the December 19 meeting by the Common Council to Friends on December 20, 2017. Friends then amended their complaint to allege the City had improperly withheld the draft contract. The trial court found the City “properly withheld certain public records temporarily in response to the record request made by [Friends] for the reasons set forth in the letter . . . and appropriately relied on Wis. Stat. § 19.85(1)(e) as the basis for doing so under the circumstances of this case.” The trial court also found Friends was not entitled to attorney’s fees under Wis. Stat. section 19.37(2). Friends appealed, and the Wisconsin Court of Appeals for District II reversed.
The Wisconsin Supreme Court focused its inquiry on an interpretation of Wis. Stat. sec. 19.37(2)(a), and what it means to “prevail in whole or substantial part” in order for a court to award attorney’s fees under a Mandamus action for release of public records, as well as whether the City improperly withheld the draft contract. The Court found the City had not improperly withheld the draft contract, and also discussed the standard to award attorney’s fees at length. In its discussion, the Court noted, “to prevail” means “the party seeking records must obtain a judicially sanctioned change in the parties’ legal relationship.” Id. at ¶ 13. In doing so, the Court looked at parallel federal law under the Freedom of Information Act (FOIA) and how federal courts award attorney’s fees in similar actions. Id. at ¶ 15. Comparing previous state court practice and current federal law, the Court explained, “previously, the State’s appellate courts had found a party ‘prevails’ under the statute in a public records lawsuit if there exists a ‘causal nexus’ between the requestor bringing the action and the defendant providing the requested records.” Id. at ¶ 18. This analysis, however, created an uneven playing field for cases involving a delay in the release of records, especially due to unintentional or inadvertent error. A requestor could still receive attorney fees by virtue of a custodian correcting their error, and complying with the law if a lawsuit had been initiated. In changing course, the Court noted federal courts rely on an analysis of whether a party “substantially prevailed” in an action to determine whether to award attorney’s fees. Id. at ¶ 21. The Wisconsin Supreme Court decided in this case to change course and implement the “substantially prevailed” standard going forward. In doing so, the Court stated “absent a judicially sanctioned change in the parties’ legal relationship, attorney’s fees are not recoverable under sec. 19.37(2)(a).” Id. at ¶ 24.
This is a substantial victory for records custodians who are otherwise attempting to comply with their obligations under Wisconsin’s public records, or “Sunshine,” laws. While previously, a records requestor could apply for court action to compel release of records and expect to receive compensation for attorney’s fees almost automatically, the landscape has changed significantly with this decision. Now, an award of attorney’s fees is no longer an entitlement under this interpretation, much to the benefit of records custodians and well-meaning public servants.