March 16, 2023 at 12:37 p.m.
Swearingen helps lead effort on major open records bill
At first blush that might sound reasonable, but, prior to the court ruling, requesters who went to court after a records request was denied or delayed only had to show that the record custodian subsequently released the record because the lawsuit was filed. If that happens now, there is no final disposition in court, and so the records requester cannot collect legal fees.
Critics of the ruling say government custodians can deliberately forestall fulfilling a request, compelling requesters to go to court, and, if they do, simply release the record without penalty.
State Rep. Rob Swearingen (R-Rhinelander) is a co-author of the bill, along with state Rep. Todd Novak (R-Dodgeville) and Sen. Duey Stroebel (R-Cedarburg).
Novak said that openness and transparency are the cornerstone of a well-functioning government.
"Wisconsin's public records laws empower citizens to keep a watchful eye on the use of public funds, highlight wrongdoing among government officials, and combat fraud and other forms of government corruption," Novak said. "Our bill will restore the status quo and maintain our state's strong history of open and transparent government. As the current mayor of a city and former newspaper editor for 25 years, transparency in government is embedded in my beliefs."
Stroebel said the legislation was critical to ensuring that the public records law functions as intended when a government actor gets taken to court for failing to comply with the law.
"Absent the restoration of longstanding precedent this bill would achieve, the taxpayer-funded entities who have shown a tendency for flouting public records requests could be further emboldened to skirt the law," Stroebel said.
The proposed bill would make clear that a party "prevails" and may recover their attorney fees under state law when a government agency releases records after a lawsuit is filed.
Specifically, under the bill, where a government authority voluntarily or unilaterally releases a record, a judge could award attorney fees if the court determines that the filing of the action under the statutes was a substantial factor contributing to that voluntary or unilateral release.
Among the bill's supporters are the Wisconsin Institute for Law & Liberty (WILL), Wisconsin Freedom of Information Council, Wisconsin Newspapers Association, Wisconsin Broadcasters Association, Wisconsin Transparency Project, and Americans for Prosperity.
WILL had called for such a law last year, and this week WILL deputy counsel Lucas Vebber said the ability to request public records is vital to ensuring transparent and accountable government.
"Sadly, WILL has seen its fair share of open records requests unfulfilled or simply ignored by government actors," Vebber said. "It is the government's duty to respond to citizens efficiently and in a timely manner - this bill ensures accountability when government tries to avoid transparency."
Unwarranted delays
In a memo circulated to lawmakers asking for co-sponsors, Swearingen, Novak, and Stroebel agreed that there were instances when there are unwarranted delays in the production of records or access is denied altogether.
"In those situations, current law outlines a process where a records requestor may file a lawsuit to compel the government entity to furnish the requested information," the lawmakers wrote. "In some cases, the mere filing of a lawsuit leads to the requested information being turned over - likely because the government knew a judge would order the information to be given to a requester."
The old practice of allowing a judge the flexibility to order the government agency that withheld the records to reimburse the legal costs incurred by a requester provided an important incentive for governmental entities to produce records "as soon as practicable, without delay," they wrote.
Now, the lawmakers wrote, a government can hold on to public records until a suit is filed. If a 'court-ordered change in the legal relationship between the plaintiff and the defendant' is required to recover attorney fees moving forward, Swearingen and his colleagues wrote, then a dangerous trend could arise where government entities withhold records with little to no recourse.
Specifically, the lawmakers wrote, by altering the statutory definition of "prevail" to allow courts to award attorney fees in instances where the voluntary release of a record was substantially related to a record requestor filing a lawsuit, the legislation not only returns to the methodology used prior to the Friends of Frame Park, U.A. v City of Waukesha decision but establishes a standard that is substantially similar to the standard that applies for a requester to obtain attorney fees and costs under the federal Freedom of Information Act.
Last year, WILL released a policy brief by Vebber and Samantha Dorning, a Bradley Foundation Legal Fellow at WILL, calling for a look at various fixes for the Supreme Court decision. Their options, they wrote, would make clear what it means for a litigant to "prevail" in situations where a records holder releases records after a suit has been filed.
For one thing, they called for adding a test into the statute that would simply require the court to find that the litigation itself caused the records to be released in order to award fees.
Alternatively, they wrote, state law could adopt the same definition of "prevail" that exists under federal law, that litigants will be able to recover fees in the event the government provides records after a suit has been filed.
"In addition, state law could allow other forms of relief in public records suits beyond simply a mandamus action," they wrote. "In the open meetings context, for example, the law may be enforced by seeking 'legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment, as may be appropriate under the circumstances.'"
Adopting those type of changes would shift the balance of power back to the public, rather than the government entity, Vebber and Dorning wrote.
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