Top Republican noncommittal on bipartisan fix to Wisconsin public records access problem

A bipartisan coalition of lawmakers is pushing a fix to a 2022 Wisconsin Supreme Court decision that hampered the public’s ability to obtain attorney fees in certain public records lawsuits against public officials — but the top Assembly Republican remains noncommittal about the bill.

The case, Friends of Frame Park v. City of Waukesha, involved a public records dispute between the city and a citizen group. Waukesha was working to bring a semi-professional baseball team to town. A group of concerned residents, Friends of Frame Park, submitted a public records request to the city seeking copies of any agreements the city had reached with the team’s owners or the semi-professional league. 

The city partially denied the request and refused to produce a copy of a draft contract. Friends of Frame Park hired an attorney and sued. A day after the lawsuit was filed, and before the local circuit court took action, the city produced a copy of the draft contract.

The case eventually worked its way to the state Supreme Court, which determined that Friends of Frame Park was not entitled to attorney fees because it technically had not prevailed in court — the group received the record without action from the circuit court.

The ruling “actually incentivizes public officials to illegally withhold records because it forces requestors to incur legal costs that may never be recovered,” said Bill Lueders, president of the Wisconsin Freedom of Information Council, during a public hearing about the bill.

Max Lenz, an attorney representing the Wisconsin Newspaper Association, said the state Supreme Court ruling incentivizes public officials to “effectively dare the public to sue.” 

“The Supreme Court’s ruling in Friends of Frame Park flipped the public records law presumption of openness on its head,” he said.

The legislation, spearheaded by state Sen. Van Wanggaard, R-Racine, would supersede the high court’s ruling and allow a requestor to obtain attorney fees if a judge determines that the filing of a lawsuit “was a substantial factor contributing to that voluntary or unilateral release” of records, according to the nonpartisan Legislative Reference Bureau. 

The bill has garnered support from an unusual coalition of organizations. Seven groups, some of which frequently lobby, have registered in support of the bill, including the liberal ACLU of Wisconsin and the conservative Wisconsin Institute for Law & Liberty.

A similar version of the bill was approved by the state Senate last session but did not receive a vote in the Assembly. The legislation was approved by the state Senate last week.

The legislation’s path forward remains unclear. Assembly Speaker Robin Vos, R-Rochester, told reporters recently that “our caucus has never talked about it.”

“It’s certainly something we could discuss, but we don’t have a position on it at this time,” Vos added.

Are you interested in learning more about public records? Here’s a primer on what types of records should be accessible to you — and how to request them.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.