Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. Underlined text indicates emphasis added by the justices, not WJI.
The case: Friends of Frame Park v. City of Waukesha
Majority/Lead: Justice Brian Hagedorn (25 pages), joined in various parts by Justices Rebecca Grassl Bradley, Patience D. Roggensack, and Annette K. Ziegler.
Concurrence: Grassl Bradley (43 pages), joined by Roggensack and Ziegler.
Dissent: Justice Jill J. Karofsky (22 pages), joined by Justices Ann Walsh Bradley and Rebecca F. Dallet.
When ascertaining if a records requester is entitled to attorney's fees as a part of a mandamus action under the state's public records law, a party must "prevail in whole or in substantial part," which means the party must obtain a judicially sanctioned change in the parties' legal relationship. With respect to the mandamus action before us, the City properly applied the balancing test when it decided to temporarily withhold access to the draft contract in response to Friends' open records request. Accordingly, regardless of whether Friends may pursue fees after voluntary delivery of the requested record, Friends cannot prevail in its mandamus action and is not entitled to attorney's fees.
Friends of Frame Park, a citizens' group, in October 2017 requested information about the city's plan to bring baseball to Waukesha and to Frame Park. The city rejected a request for a copy of the proposed contract with Big Top Baseball, saying it was still in negotiation and the city wanted to protect its bargaining position. The city said it would release the proposed contract after the Common Council took action on it.
The contract was on the Common Council agenda for Dec. 19, 2017. Friends sued on the day before the meeting for release of the records.
The following evening, the City's Common Council met. It is unclear from the meeting minutes whether, or to what extent, the draft contract was discussed. The minutes note the following with respect to Frame Park: "Citizen speakers registering comments against baseball at Frame Park"; the "City Administrator's Report" included a "Northwoods Baseball League Update"; and an "item for next Common Council Meeting under New Business" was to, "Create an ADHOC Committee for the purpose to address Frame Park and Frame Park issues."
The city released the requested records on Dec. 20, even though the council had not voted on the contract.
Consistent with its explanation initially denying release, the City explained the documents "are being released now because there is no longer any need to protect the City's negotiating and bargaining position."
Friends then amended its complaint, asking the circuit court to hold that the City improperly withheld the draft contract. In advance of trial, the City filed a motion for summary judgment which the circuit court granted; Friends did not move for summary judgment. ...
Friends appealed, and the Court of Appeals reversed the lower court decision. The city appealed to SCOW.
Four justices agree that to "prevail in whole or in substantial part" means the party must obtain a judicially sanctioned change in the parties' legal relationship. Accordingly, a majority of the court adopts this principle.
This conclusion arguably raises other statutory questions. Prior court of appeals cases have held that a requester could still pursue attorney's fees even if the records have been voluntarily turned over. This conclusion rested on its causation-based theory, however. The concurrence argues that under the proper statutory test we announce today, a mandamus action becomes moot after voluntary compliance, and record requesters have no separate authority to pursue attorney's fees. We save this issue for another day. Even if record requesters can pursue attorney's fees following release of the requested records, an award of fees would not be appropriate here. This is so because in temporarily withholding the draft contract, the City complied with the public records law. Applying the balancing test, the City pointed to the strong public interest in nondisclosure – namely, protecting the City's negotiating and bargaining position and safeguarding the Common Council's prerogative in contract approval. These considerations outweigh the strong public policy in favor of disclosure. Furthermore, the City recognized the balance of interests would shift after the Common Council meeting, and it properly disclosed the draft contract at that time. Therefore, the City did not violate the public records law. And thus, the requester did not and could not prevail in whole or substantial part in this action. Therefore, no judicially sanctioned change in the parties' relationship is appropriate and the requester is not entitled to any attorney's fees.
Section 19.37 of the state statutes provides that the record requester may be entitled to various damages and fees as a result of the mandamus action. Relevant to this case, the statute contains the following fee-shifting provision: "Except as provided in this paragraph, the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requestor if the requester prevails in whole or in substantial part in any action filed under sub. (1) relating to access to a record or part of a record. ..." Besides attorney's fees, the law also specifies that the circuit court shall award actual damages if "the authority acted in a willful or intentional manner" and may award punitive damages if the authority "arbitrarily and capriciously denied or delayed response to a request or charged excessive fees."
The fee-shifting provision was comparable to one contained in the federal Freedom of Information Act, Hagedorn said. A federal appeals court ruled that damages could be awarded if records were released prior to the conclusion of a FOIA case if bringing the case caused the records to be released. In 2001, however, the U.S. Supreme Court rejected that reasoning.
It expressly rejected ... the causation-based interpretation, concluding instead that "the term 'prevailing party' " refers to "one who has been awarded some relief by the court." Congress eventually adopted a law restoring the causation provision. The Wisconsin Legislature has not specifically embraced causation-based awards, Hagedorn said.
When the legislature uses a legal term of art with a broadly accepted meaning – as it has here with "prevails" ... we generally assume the legislature meant the same thing. If the idea that a party could prevail in a lawsuit in the absence of court action was unknown in Wisconsin when this statute was adopted, we should not read that interpretation into the statute now given the absence of any evidence that it was understood to have that meaning when enacted.
A causation or catalyst theory is not a comfortable fit with statutory text that allows recovery of attorney's fees "if the requester prevails in whole or in substantial part in any action." The better course is to follow the United States Supreme Court's lead and return to a textually-rooted understanding of when a party prevails in a lawsuit. Absent a judicially sanctioned change in the parties' legal relationship, attorney's fees are not recoverable. ...
Without a causation-based theory governing the meaning of prevailing party under the statute, however, it is unclear whether voluntary compliance following the filing of a lawsuit could still allow a requester to pursue fees. We reserve this question for another day. Even if attorney's fees may be awarded after the voluntary production of records, the City here did not violate the law, as explained below. Friends therefore would not be entitled to any judicial relief – that is, it would not prevail in whole or substantial part – even if fees are available in this context. Accordingly, Friends is not entitled to attorney's fees either way.
Invoking the language in Wis. Stat. § 19.85(1)(e) (exemptions to open meetings requirements) the City explained that "the contract [was] still in negotiation with Big Top." Withholding disclosure was important to "protect the City's negotiation and bargaining position" and "the City's ability to negotiate the best deal for the taxpayers." Disclosure "would substantially diminish the City's ability to negotiate different terms the Council may desire for the benefit [of] the City" and "compromise" "the City's negotiating and bargaining position." The City further explained that the "draft contract is subject to review, revision, and approval of the Common Council before it can be finalized, and the Common Council [has] not yet had an opportunity to review and discuss the draft contract." The City indicated it would disclose the draft contract after the Common Council had taken action.
The circuit court correctly concluded the reasons set forth in the City's letter supported temporarily withholding the draft contract. Without question, the public interest in matters of municipal spending and development is significant. There is good reason for the public to know how government spends public money. This ensures citizen involvement and accountability for public funds. However, contract negotiation often requires a different calculus. Wisconsin ... law identifies the public interest in protecting a government's "competitive or bargaining" position in adversarial negotiation. It is not uncommon for the state or local municipalities to negotiate certain contracts in private, especially in competitive business environments. ...
Under these circumstances, the City's interest in withholding the draft contract to protect its bargaining position until the Common Council had the opportunity to consider the contract outweighed the public's interest in immediate release. The City properly applied the balancing test and did not violate the public records law by temporarily withholding the draft contract, nor did it delay release of the contract unreasonably. Accordingly, regardless of whether the issue of attorney's fees is moot, Friends is not entitled to attorney's fees because it did not prevail in whole or in substantial part on the merits of its mandamus action.
The court of appeals has repeatedly failed to give the legal term of art in statute its accepted legal meaning. In at least six cases, the court of appeals has instead endorsed the now-defunct "catalyst theory," under which a party may be deemed to have prevailed – even in the absence of favorable relief from a court – if the lawsuit achieved at least some of the party's desired results by causing a voluntary change in the defendant's conduct.
In this case, the court of appeals erred in applying ... precedents, embracing a purposivist and consequentialist approach to statutory interpretation, in derogation of the textualist approach Wisconsin courts are bound to follow.
I write separately because the majority/lead opinion does not acknowledge this case is moot, obviating any need to address the merits. All records were given to the requester before the circuit court ever rendered a decision. ... In this case, the act requested had already been performed, so neither the circuit court nor the court of appeals nor this court needed to address the merits of Friends' public records claim. Because this case is moot, we need not consider whether Friends is entitled to relief. Without favorable relief, Friends cannot recover attorney fees. Because the majority/lead opinion reaches the merits of this case without any explanation of what possible favorable relief could be granted, I respectfully concur.
After the public records statute damages section was enacted in 1982, the court of appeals adopted the catalyst theory, which conflicts with the longstanding meaning of what it means to prevail in a court case. A "fair reading" of a statute requires adherence to the statute's text as it was understood at the time of the statute's enactment.
The United States Supreme Court interpreted the meaning of "prevailing party" in fee-shifting schemes permitted in certain federal statutes. The Court stated: "Now that the issue is squarely presented, it behooves us to reconcile the plain language of the statutes with our prior holdings. We have only awarded attorney's fees where the plaintiff has received a judgment on the merits, or obtained a court-orderedconsent decree. ... Never have we awarded attorney's fees for nonjudicial alterations of actual circumstances."
Even if the United States Supreme Court had not disavowed the catalyst theory, our own court of appeals cases are nonetheless "unsound in principle." They failed to follow our well-established rule of statutory interpretation that legal terminology must be given its "accepted legal meaning." Choosing alternative meanings, particularly to advance preferred policies, destabilizes the law. Additionally, judicial tampering with accepted legal meaning interferes with the legislature's ability to make law.
Even a cursory reading of the court of appeals precedent on awarding attorney fees in public records cases reveals it is "incoherent" and "unworkable in practice," presenting yet another reason to overturn it. In this case, the court of appeals struggled to "reconcile what, at least superficially, appears to be inconsistent language from prior decisions addressing how and whether a public records plaintiff can recover attorney fees following voluntary release during litigation." Applying the statutory text would ensure consistent and predictable application of the law, eliminating the subjectivity inherent in determining who "prevailed" in a suit.
This court properly reverses the metamorphosis in public records law created by the court of appeals' atextual interpretation of what it means to prevail in a court action. Friends did not obtain any favorable relief in court. This case was moot almost as soon as it began. We should say so, and overturn court of appeals precedent crafted to advance the policy preferences of judges at the expense of the law's text. The majority/lead opinion reached the right outcome for the wrong reasons, declining to recognize the case is moot and instead allowing litigation over the merits.
Shine light on the government's work product and citizens will engage and hold to account their representatives, achieving a purer democracy. A majority of this court frustrates that goal, seeding clouds as it eviscerates the mandatory fee shifting provisions integral to keeping the sun shining in our great state. By reinterpreting the law to reward government actors for strategically freezing out the public's access to records, today's decision will chill the public's right to an open government. And the majority/lead opinion does not stop there. It also condones the City's patently inapplicable "competitive or bargaining" excuse to deny Friends timely access to a proposed contract. The result is that Friends are denied the attorney fees to which it is entitled for bringing a claim to enforce its rights when Friends had no other recourse. Because the majority/lead opinion reimagines the fee shifting standard too narrowly, while construing the "competitive and bargaining reasons" exception too broadly, all at the expense of our public records laws, I respectfully dissent....
A majority of this court tarnishes Wisconsin's proud history of transparent government by transforming a routine records request into a catalyst to decimate Wisconsin's fee shifting structure. This analysis begins by addressing the majority's grievous perversion of the public records laws' critical fee shifting provisions. Then, the analysis turns to the case at hand, first explaining how unjustified delays in releasing records burden the public. Lastly, this analysis dismantles the City's flawed excuses for concealing the proposed contract by highlighting that: (1) the record implicated no "competitive or bargaining" concern; and (2) the Common Council did not enter into a closed session as is required to invoke the "competitive or bargaining" excuse in the first place. ...
In an action to enforce Wisconsin's public records laws, a requester is entitled to his or her attorney fees when "the requester prevails in whole or in substantial part." This fee shifting provision serves two important purposes: (1) it enables people, particularly those with limited means, to bring enforcement actions; and (2) it incentivizes the government's voluntary compliance by penalizing non-compliance. Fee shifting is often implemented when laws rely on the public to bring enforcement challenges. In the arena of public records, the government holds the records and no other entity reviews the government's decision to withhold or delay the release of a record. As a result, the only enforcement mechanism is a citizen's mandamus action. Without a robust fee shifting mechanism in public records laws, record requesters face a no-win scenario when a request is denied. They can either acquiesce to the government's potentially unlawful withholding of the record, or they can bring a mandamus action to enforce their right to the record at the risk of substantial legal fees.
The causation test appropriately captures what it means to "prevail . . . in substantial part" in a public records case and is a workable, practical test. A majority of this court, however, rejects the causation test. In its place, they would now condition attorney fees on a "judicially sanctioned change in the parties' legal relationship." Both the majority/lead and concurring opinions insist that "prevailing party" is a "legal term of art" according to the Buckhannon case. There is one glaring error with applying Buckhannon here. The phrase "prevailing party" is conspicuously absent from Wisconsin's public records law. Instead, ... the statute states that costs and fees must be awarded "if the requester prevails in whole or in substantial part" in an action relating to a record's request. ...
The use of "requester" rather than "party" is instructive as "party" connotes litigation while "requester" places the phrase in the broader context of the records request. Thus, the test derived from the term of art "prevailing party," which requires a judicially sanctioned change in a litigant's position, does not fit the specific language in Wisconsin's statutes.
In addition to encouraging timely compliance with public records laws, the causation test also promotes judicial efficiency. In circumstances where the government releases a record before the end of trial, the test eliminates the need to adjudicate the merits of a now-moot record request. It is well established that plaintiffs in public records actions may seek attorney fees and costs despite the underlying action being moot because of the voluntary release of records. The causation test sensibly premises an award of fees and costs on a finding that filing the mandamus action was reasonably necessary to receive the record and that there was a causal connection between the action and the record's release. This test allows a court to make a grounded determination on the necessary attorney fees question without fully litigating the underlying merits. The factual inquiry required under a causation test is thus necessarily limited and has been reliably applied by the lower courts for decades. Thus, we should continue to employ this textually faithful and practical test.
The new test, which looks for a "judicially sanctioned change" in the parties legal relationship, will result in one of two detrimental changes in how circuit courts handle public records disputes. Which detrimental change actually occurs will depend on how courts apply the test in cases where the records are voluntarily released before the underlying mandamus action reaches a final order. The new test would either: (1) completely forego the option of awarding attorney fees to a record requester when an authority voluntarily releases a record, no matter the length of delay or the stage of the action at the time of release; or (2) require that circuit courts make a determination on the underlying merits of every public records case that comes before them. The former approach, which is sanctioned by the concurrence, nullifies our public records laws and allows governmental authorities to delay the release of records; the latter is judicially inefficient. The effects of a "judicially sanctioned change" test have already played out in the federal context and we should learn from those mistakes, not repeat them. Put simply, the new test casts storm clouds over our once clear public records laws.
The City's "competitive or bargaining" rationale fails for two reasons in this case. First, no competitive or bargaining concerns remained at the time the City denied the records request. Second, the City Council never entered into a closed session during its December 19th meeting. Therefore, the City improperly balanced the public interest by concluding that the proposed contract's release would have adversely affected the public. ...
Big Top representatives already had seen the proposed contract and even suggested edits, Karofsky said. And, while the city claimed that the mere possibility that another city might be interested in baseball was enough to invoke an exception to the open records law, Waukesha did not explain why it was.
According to the City, the only relevant party not to have seen the proposed contract before the December 19 meeting was the Common Council, and the City cannot seek a bargaining advantage against its own Common Council.
The facts indicate an alternative motive for withholding the proposed contract – the City sought to avoid public input before the Common Council had the opportunity to act on it. The City admitted as much in its letter explaining that it would delay disclosure until "after the Common Council has taken action on it." That is not a legal basis to withhold a record from the public.
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