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  • March 24, 2022

    Two Recent Appeals Court Decisions Highlight Open Records Laws

    Two recent appeals court decisions draw attention to the presumption of openness in Wisconsin’s public record laws. Nelson W. Phillips details the cases decisions and the decisions.

    Nelson W. Phillips

    open file cabinets

    Two fairly recent decisions highlight the Wisconsin public records law’s presumption of openness, with limited exceptions, and the mandamus process by which challenges to that policy of openness occur.

    In the case of Friends of Frame Park v. City of Waukesha,1 the requested records were disclosed shortly after the petition for mandamus was filed, and the court explained that, even after the records were released, the requester is entitled to relief as the prevailing party if the authority’s basis for denial is incorrect.

    Further, the court in Wisconsin Manufacturers and Commerce v. Evers2 reminds us of the specific exceptions to disclosure of Personal Identifying Information (PII) and the public records law’s limitations on nondisclosure.

    Friends of Frame Park v. City of Waukesha

    Plaintiff-appellant Friends of Frame Park, U.A., (Friends) submitted a public records request to the City of Waukesha for the draft contract exchanged between defendant-respondent City of Waukesha and Big Top Baseball, LLC, (Big Top) that described the terms under which Big Top’s pro baseball team would play in a stadium proposed to be built in the city’s Frame Park.

    The city denied Friends’ request for the draft contract for two reasons:

    • because the contract was still in negotiation with Big Top and another entity, inferring that disclosure might cause the city to lose the team to the other entity or force less favorable terms upon the City; and

    • the city explained that the contract was also subject to review by the Common Council, which had not yet taken place, and public access was restricted for competitive and bargaining reasons until the review and negotiation process was complete.

    On Dec. 18, 2017, Friends filed a mandamus action to obtain the draft contract.3

    Nelson W. Phillips Nelson W. Phillips III, U.W. 1998, is assistant corporation counsel for Milwaukee County, where he practices in litigation.

    On Dec. 19, 2017, the Common Council met, though it is unclear whether the common council addressed or decided anything relative to the contract. On Dec. 20, 2017, the city released the draft contract with a letter that explained that there was no longer a need to protect the city’s negotiating and bargaining position. Litigation continued and the city moved for summary judgment.

    The trial court granted the city’s motion. The court stated that the city appropriately relied on the Wisconsin open meetings law’s competitive bargaining exception to the public records law when it initially withheld the draft contract, and further that Friends was not a “prevailing party” entitled to attorney fees, because the lawsuit did not cause the release of the record.

    On appeal, the city argued that the draft contract represented competitive negotiations between the city, Big Top, and one other party for a baseball team to play at the park – thus, the record fit an exception to Wisconsin’s Open Meetings Law, Wis. Stat. section 19.85(1)(e) – Exemptions to Open Meetings Law (“whenever competitive or bargaining reasons require a closed session”).

    Section 19.85(1)(e) cannot, however, be invoked merely because a private entity desires confidentiality; because the public will later have the opportunity to provide input; or to prevent competition where the other side remains free to negotiate with potential competitors.

    It was unclear, here, that disclosure would have harmed the city’s negotiating position (i.e., there must be clear and detailed evidence of competitive bargaining reasons underlying a position to not disclose).

    The court found that Friends was a prevailing party under the public records law, because the city improperly invoked the competitive bargaining exception. Requesting parties in a public records case are entitled to attorney’s fees who “prevails in whole or in substantial part” Wis. Stat. section 19.37 (2)(a).

    As a result, Friends prevailed and was entitled to “reasonable attorney fees, damages of not less than $100, and other actual costs” for that portion of its action that relates to its Oct. 9, 2017, public record request for the draft contract.4

    Wisconsin Manufacturers and Commerce v. Evers

    The Wisconsin Department of Health Services (DHS) planned to disclose records, in response to public records requests, that would identify businesses with 25 or more employees that had at least two employees test positive for COVID-19 or who had close case contacts that were investigated by contact tracers. The records would also include the number of employees at each business.

    Three Wisconsin trade associations challenged this disclosure, by filing an action for declaratory judgment seeking injunctive relief. They argued that medical information, pursuant to Wis. Stat. section 146.82 (“Confidentiality of Patient Health Care Records”) and various other policy considerations prohibited such a disclosure.

    The circuit court entered a temporary restraining order enjoining the release of records. The associations moved for a temporary injunction. DHS and an intervenor moved to dismiss the action, but the circuit court denied the motions to dismiss, and granted the associations’ temporary injunction.

    On appeal, the court concluded that the associations’ complaint failed to state a claim upon which relief could be granted. This is because, in sum, the associations’ member businesses didn’t have a legally protectable interest that could justify the injunction they sought. The reasons are that the associations:

    • failed to allege a legally protectable interest that made the declaratory judgment an unavailable remedy, even assuming they had standing to make the claim;

    • failed to allege plausible facts establishing harm to a purported legally protectable interest; and

    • could not overcome the general prohibition in Wisconsin’s public records law against a court challenge to the planned release of public records by a governmental authority (i.e., that “… no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record”).5

    Thus, the court granted DHS and intervenor motions for dismissal of the associations’ complaint and reversed the circuit court’s grant of injunction.

    Notably, the court clarified that the associations’ request for an injunction on behalf of its member businesses did not fit the statutes’ protection of the rights of individual patients, and notes that only individual patients can seek pre-release injunctive relief.6

    In other words, the associations did not have standing. As such, the associations were left without a cognizable legally protectable interest via statute or Constitutional provision, and no relief pursuant to the statutes.

    The court was also not persuaded by the associations’ argument that release of the records would permit unlawful identification of patients. This is because the requested list of businesses would reveal only a list of the names of businesses with known or suspected cases of COVID-19 at those businesses (if the businesses had 25 or more employees and then had at least 2 employees test positive for COVID, or who had close case contacts that were investigated by contact tracers and the numbers of such employees at each business). The list did not permit any reasonable identification of any of individual employees or “patients.”

    This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section webpages to learn more about the benefits of section membership.


    1Friends of Frame Park v. City of Waukesha 394 Wis.2d 387 (Ct. App. 2020).

    2Wisconsin Manufacturers and Commerce v. Evers, 398 Wis.2d 164 (Ct. App. 2021).

    3See Wis. Stat. § 19.37(1)(a).

    4See Wis. Stat. § 19.37(2)(a).

    5See Wis. Stat. § 19.356(1).

    6See Wis. Stat. § 146.82, et seq.

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    Litigation Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Matthew Lein and Heather L. Nelson and review Author Submission Guidelines. Learn more about the Litigation Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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