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  • WisBar News
    September 23, 2020

    Attorney Fees Apply: City Disclosed Public Records but After Lawsuit Filed

    Joe Forward


    Sept. 23, 2020 – A state appeals court has ruled that a community organization that sought disclosure of a draft contract between the City of Waukesha and a professional baseball team is entitled to attorney fees in the public records litigation.

    Friends of Frame Park (Friends) tried to obtain a draft contract between Waukesha and Big Top Baseball LLC, which was pursuing plans to construct a stadium in Waukesha’s 34-acre Frame Park along the Fox River for summer league collegiate baseball.

    The city released the draft contract only after Friends sought a writ of mandamus in the circuit court, which ultimately held the city properly relied on an exception to Wisconsin public records law and additionally, that Friends was not entitled to attorney fees.

    The public records statute, Wis. Stat. section 19.37(2)(a), allows a requesting party who “prevails in whole or in substantial part” to obtain attorney fees from the withholding party. In this case, the circuit court said the city voluntarily disclosed the draft contract and thus Friends was not entitled to attorney fees under that statute.

    But in Friends of Frame Park v. City of Waukesha, 2019AP96 (Sept. 16, 2020), a three-judge panel for the District II Wisconsin Court of Appeals reversed, concluding that Friends substantially prevailed in the action and was thus entitled to attorney fees.

    Exception Did Not Apply

    The city argued the lawsuit did not cause the city to release the draft contract. Rather, the city argued the exception it had relied on to withhold the document – allowing records to be withheld for competitive or bargaining reasons – no longer applied.

    Specifically, Wis. Stat. section 19.85(1)(e) permits closed meetings and nondisclosure of records if “[d]eliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.”

    But the appeals court concluded that the city did not properly invoke the exception to withhold the draft contract, and that is a key consideration.

    “We hold that where litigation is pending and an authority releases a public record because a public records exception is no longer applicable, causation is not the appropriate inquiry for determining whether the requesting party has ‘substantially prevailed,’” wrote Judge Jeffrey Davis. “Rather, the key consideration is whether the authority properly invoked the exception in its initial decision to withhold release.”

    The panel concluded that “any concern about competition appears to have been resolved by the time of the records request” because the city could not articulate, in hearings before the court, how releasing the records would undermine its position.

    It was the city’s burden “to show that competitive or bargaining interests require closed sessions,” the panel explained, noting the statutes do not define the phrase “competitive or bargaining reasons” but several cases have dealt with that exception.

    The panel said “there must be a specific showing as to why ‘competitive or bargaining reasons require’ nondisclosure and the city “has not met this high burden.”

    “Friends has shown that regardless of whether the December 19, 2017 common council meeting was properly closed, ‘competitive or bargaining reasons’ did not require nondisclosure of the draft contract at the time of the request,” Judge Davis wrote.

    “In light of the merits-based inquiry that must determine Friends’ prevailing party status in this case, we reverse and remand to the trial court to grant summary judgment in favor of Friends.” Thus, the panel also ruled that Friends prevailed in whole or in substantial part and is entitled to attorney fees and costs.

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