Bill restoring public records fees moves forward

By Alexandria Staubach
 
A popular bill to restore awards of attorney’s fees in public records cases is making its way through the Wisconsin State Assembly after having passed unanimously in the Senate … again.
 
AB190/SB194 would allow those suing public authorities over failure to comply with public records requests to recover reasonable attorney’s fees when the authority discloses records after the record seeker files the lawsuit.
 
The statute is consistent with how courts awarded attorney's fees awards until recently and comes as backlash to a 2022 Wisconsin Supreme Court decision. In Friends of Frame Park. v. City of Waukesha, the Supreme Court said plaintiffs could recover attorney's fees only upon securing a court order or judgment in a public records case. If the public authority released the records requested at any time during the court proceedings before the court directed disclosure, it would not be on the hook for the plaintiff’s attorney's fees.
 
Written testimony in support of the bill submitted by the ACLU of Wisconsin points out that “courts had previously recognized if the government actor was only ‘voluntarily’ releasing documents because of the lawsuit filed against them, they should still have to pay the requestor’s legal fees.”
 
Friends of Frame Park rejected that interpretation.
 
The bill’s author, Rep. Todd Novak (R-Dodgeville), told fellow legislators that “a dangerous trend may arise where government entities have increased power to withhold records, as the public will need to weigh whether the litigation costs are worth expending to compel the release of the records.”
 
Novak testified to a sparsely attended Assembly Committee on Senate Affairs hearing late last month. “You shouldn’t have to get to a point where you go to court, before a municipality or whoever turns over the records,” he said.
 
The bill enjoys broad bipartisan support and is embraced by advocacy groups often opposed on other topics. Both the ACLU of Wisconsin and the conservative litigation center Wisconsin Institute for Law & Liberty support the measure.
 
“The inability to obtain attorney’s fees upon prevailing in an open records lawsuit can make it prohibitively expensive for Wisconsinites to challenge the denial of requests or excessive delays in response times,” wrote Luke Berg, WILL deputy counsel, in support of the bill.
 
Berg cautioned that under the present interpretation, “fewer attorneys will be willing to bring open records cases on a contingent fee basis, putting greater transparency and accountability at risk.”
 
The bill duplicates one introduced during the last legislative session. That bill, too, enjoyed bipartisan support and passed unanimously in the Senate. However, Speaker Robin Vos failed to bring the issue to a vote in the Assembly.
 
At last month’s hearing, Novak said he hopes to bring the current bill “over the hump.”  
 
On July 8, the current bill passed unanimously in the Assembly Committee on State Affairs and was referred to the Committee on Rules.