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  • WisBar News
    June 22, 2015

    Newspaper Not Entitled to Attorney Fees, Other Costs in Public Records Case

    Joe Forward

    June 22, 2015 – A Racine newspaper will have to pay its own attorney fees and won’t get damages or costs incurred in its public records lawsuit against the City of Racine Board of Police and Fire Commissioners, the Wisconsin Supreme Court has ruled.

    Pursuant to Wisconsin’s public records law, the Journal Times of Racine commenced an action requesting information about a meeting the Commission held in closed session. The Commission ultimately provided information, but no specific record.

    However, the newspaper maintained the lawsuit to recover attorney’s fees, damages, and costs, arguing that it “prevailed in whole or substantial part,” and Wis. Stat. section 19.37(2)(a) allows prevailing parties to recover the costs and fees of litigation.

    In The Journal Times v. City of Racine Board of Police and Fire Commissioners, 2015 WI 56 (June 18, 2015), the supreme court ruled that the newspaper did not prevail in substantial part and thus cannot recover attorney fees and other costs “because the Commission did not unlawfully deny or delay release of the subject record.”

    What Happened?

    The Commission’s five members are appointed by the mayor and are responsible for hiring and firing police officers and firefighters, including the police and fire chiefs.

    In February 2012, the Commission called a special meeting to address a vacancy for Racine police chief. Specifically, the Commission was to address one applicant’s withdrawal, which left two minority finalists for a position that initially drew 23 applicants.

    The Commission held the meeting in closed session, and voted to reopen the selection process to the 11 applicants that met the minimum requirements for the job.

    A Journal Times reporter, Christine Won, sent an email to two commissioners, requesting information on the vote of each commissioner from the closed meeting. A follow-up email requested information on who made the motion and who seconded.

    At the time, there was no record containing the requested information. The commissioner who normally took notes for minutes at meetings attended by telephone and did not take notes of the Commission’s closed-session meeting.

    A deputy city attorney responded, denying the reporter’s request for information and explaining that the Commission was not required by law to disclose voting information.

    In addition, at least one commissioner expressed concerns for his own well-being if the specifics of the vote were released publicly, the deputy city attorney said in an email.

    The deputy city attorney noted “a disproportionate focus on race and an inaccurate perception that discrimination has played some role in the decision-making” process.

    The Commission agreed to release the specifics of the vote within five business days after a new police chief was hired. The newspaper was not satisfied with that response, citing a public interest in knowing immediately how the Commission made the decision.

    Three days later, the newspaper threatened a lawsuit by emailing the deputy city attorney an unfiled summons and complaint, which alleged a public records violation. The next day, the newspaper filed the lawsuit. Four days later, a new chief was hired.

    Two days after that, the deputy city attorney sent the newspaper an email that indicated the Commission’s reason for reopening the hiring selection process, who made the motion, who seconded, who voted to approve the motion, and who voted against it.

    Twenty days after receiving this information, the newspaper served the Commission with the lawsuit, which alleged a violation of Wisconsin’s public records law.

    In response, the Commission said the lawsuit was moot because it provided the newspaper with the “information” it sought within a reasonable time, and there was no public record violation because a “record” didn’t exist when requested (official “minutes” of the closed meeting were not approved until three months after the meeting occurred).

    The newspaper filed a motion for summary judgment, arguing that the Commission violated the public records law, and sought fees, costs, and damages. The circuit court denied the motion, noting the Commission could not disclose a nonexistent record.

    After learning that the “minutes” were generated and approved, the deputy city attorney sent them to the newspaper’s counsel. The minutes did not disclose anything new.

    The circuit court dismissed the case after reiterating that no “record” existed when requested. An appeals court reversed, and remanded to determine whether the newspaper was entitled to attorney fees and other litigation costs.

    The appeals court said the Commission was “estopped” from arguing that a record of the vote did not exist, and the newspaper still had a viable claim to fees and costs.

    The newspaper filed a motion for reconsideration, arguing that attorney fees and other litigation costs were automatic, as a matter of law, since it won the case – that is, “prevailed in whole or in substantial part.” The appeals court denied the motion.

    Supreme Court Rejects Newspaper’s Argument

    A four-justice majority, in an opinion by Justice Annette Ziegler, ruled that the Journal Times was not entitled to attorney fees and costs because they did not prevail – “the Commission did not unlawfully deny or delay release of the subject record.”

    The court noted that the newspaper actually alleged a violation of state open meetings law in failing to keep proper records of meetings for possible release to public requesters, including requests by newspapers. But the public records law is different.

    “In this public records law mandamus action, the Newspaper cannot recover reasonable attorney fees, damages, and other actual costs … for an alleged violation of the open meetings law,” wrote Justice Ziegler, noting the newspaper did not follow the proper procedures to pursue an alleged open meetings law violation against the Commission.

    “Certainly the Commission cannot avoid a public records request by timely failing to create a record. In this case, however, the Commission responded to the newspaper with reasonable diligence and released the requested information while maintaining that it was not legally required to do so and at a time when no record existed.”

    The court noted that the Commission was not required to provide information in response to a request for records that did not exist, but did provide the information.

    “Whether a record should have been in existence at the time of the request is a matter of the open meetings law, not public records law,” Justice Ziegler explained.


    Justice Shirley Abrahamson wrote a concurring opinion, joined by Justice Ann Walsh Bradley. They agreed that the Journal Times was not entitled to attorney fees, damages, and other actual costs incurred in bringing the mandamus action.

    Justice Abrahamson said the Commission should have informed the newspaper that it was requesting a nonexistent record, but a failure to do so doesn’t mean the newspaper prevailed for purposes of determining whether fees and costs should be awarded.

    But Abrahamson wrote separately to explain that “the majority opinion confusingly skirts around the toughest issues presented and fails to provide needed guidance to record requesters, record custodians, litigants and their counsel, and courts.”

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