Swearingen set to introduce open government bill

Rep. Rob Swearingen (R-Rhinelander), along with Rep. Todd Novak (R-Dodgeville) and Sen. Van Wanggaard (R-Racine), are preparing to introduce a bill that would reverse a Supreme Court decision requiring that a court act on an open records case before considering if attorney’s fees can be awarded to the requester.

In Friends of Frame Park, U.A. v. City of Waukesha, the state Supreme Court found that if a governmental entity releases records after a suit has been filed, but before a court has rendered a decision, the requester is not entitled to seek attorney’s fees. Prior to the decision, a court had discretion to determine if the filing of the lawsuit itself had in large part resulted in the record’s release.

The proposed legislation would reverse the Friends of Frame Park, U.A. v. City of Waukesha decision, enabling a judge to decide whether the requester is entitled to the attorney’s fees regardless of the outcome. As the Wisconsin Newspaper Association (WNA) points out, that standard is substantially like the standard that applies for a requester to obtain attorney fees and costs under the federal Freedom of Information Act.

This proposal is supported by a coalition that includes the WNA as well as the Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council, Wisconsin Institute for Law and Liberty, Wisconsin Transparency Project, and Americans for Prosperity-WI.

In a memo to lawmakers, the coalition asserted that the narrow interpretation in Frame Park of what it means to prevail allows governmental bodies to hold onto public records until a requester files a lawsuit knowing they face no penalty if they turn over the records before a judge even has an opportunity to act.  

“Prior to the decision, a broader definition of prevail was used allowing courts to determine if the legal actions of a requester had played a significant role in the records release,” the memo stated. “By codifying the previously used broader definition of prevail in Wisconsin statues, [the bill] will remove the perverse incentive for governments to hold on to public records until a lawsuit is filed. Last session, this bill received broad bi-partisan support, passing the State Senate unanimously.”

Pursuing access to public records can require litigation and litigation can be expensive, the coalition asserted.  

“The denial of the payment of attorney’s fees in cases where the requestor ultimately prevails prior to the case being fully litigated is having a chilling effect on the media and the public’s ability to pursue public documents,” the memo stated.

In the last session, Novak, Swearingen and then Sen. Duey Stroebel introduced the same bill, called the Open Government Protection Act, in March 2023. That bill received unanimous support in the State Senate but was never brought to a vote in the Assembly.

The bill is included in a package of recommendations released this week by the Wisconsin Institute for Law and Liberty (WILL), including establishing a firm 14-day deadline for agencies to respond to public records requests, with a maximum fulfillment period of 60 days, and eliminating or significantly raising the $50 minimum threshold for record location fees, which has remained unchanged since 1981.

WILL also advocates that government entities should maintain a publicly accessible log of pending records requests, while also reporting public records processing times.

In releasing the proposed reforms, WILL policy director Kyle Koenen said that, too often, citizens have to hire a lawyer just to hear back from their own government.

“That’s wrong,” Koenen said. “We believe holding government accountable starts with access to transparent information and records. These proposed reforms will bring greater access to open records and make it easier for members of the public to learn about what their government is doing on any given day.” 

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.