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The Wisconsin Supreme Court on Wednesday overturned an appeals court decision in a controversial open records case, ruling that a group of taxpayers were not entitled to attorney’s fees in a lawsuit they filed against Waukesha after the city delayed the release of records responsive to an open records request.

The Wisconsin Supreme Court on Wednesday overturned an appeals court decision in a controversial open records case, ruling that a group of taxpayers were not entitled to attorney’s fees in a lawsuit they filed against Waukesha after the city delayed the release of records responsive to an open records request.

The high court’s ruling, which was met with ire from open government advocates, stemmed from a 2017 lawsuit between a group of Waukesha residents and the city. 

The taxpayer group, Friends of Frame Park, filed an open records request with Waukesha on Oct. 9, 2017, seeking information about the city’s plans to bring an amateur baseball team to the community. Taxpayers requested city officials “include any Letters of Intent (LOI) or Memorandum of Understanding (MOU) or Lease Agreements between Big Top Baseball and or Northwoods League Baseball and the City of Waukesha during the time frame of 5-1-16 to the present time frame."

The city fulfilled the records request, but withheld a proposed draft contract between Waukesha and Big Top Baseball, because “the City's negotiating and bargaining position could be compromised by public disclosure of the draft contract before the Common Council have had an opportunity to consider the draft.”

On Dec. 18, 2017, believing the city erred in its decision not to release the contract, the taxpayers filed a lawsuit in Waukesha County Circuit Court. Two days later, following a Dec. 19, 2017, common council meeting, the city released the draft contract to the group.

Judge Michael Bohren sided with the city, concluding that Waukesha “properly withheld certain public records temporarily in response to the record request.” Friends of Frame Park appealed the decision, and an appeals court reversed Bohren’s decision.

The appeals court ruled that Waukesha’s decision to withhold the draft contract while negotiating “was unwarranted and led to an unreasonable delay in the record's release” and ordered that the taxpayer group was “entitled to some portion of its attorney’s fees.”

Wisconsin’s high court on Wednesday reversed that appeals court ruling, finding in a 4-3 decision that people seeking information via an open records request that results in a lawsuit are only entitled to attorney’s fees if there is “some judicially sanctioned change in the parties’ legal relationship.” 

That marks a significant change in the state’s open records law — now requiring judicial intervention to become entitled to recovering attorney’s fees — and has sparked concerns among open government advocates that the state’s expansive sunshine laws could become clouded.

Justice Jill Karofsky, who authored the dissenting opinion, said the majority’s decision “will chill the public's right to an open government.”

“And the majority/lead opinion does not stop there,” she continued. “It also condones the City's patently inapplicable ‘competitive or bargaining’ excuse to deny Friends timely access to a proposed contract. The result is that Friends are denied the attorney fees to which it is entitled for bringing a claim to enforce its rights when Friends had no other recourse.”

Tom Kamenick, president and founder of the Wisconsin Transparency Project, derided the decision in a statement. “This is not what the state Legislature intended or wrote when they enacted the Open Records Law in 1982,” he said. “The law doesn’t say a plaintiff has to get a court order, it says a plaintiff has to ‘prevail.” When you get the records you sued to obtain, you’ve prevailed — you’ve obtained the result you wanted.”

Wisconsin Freedom of Information Council President Bill Lueders also bashed the decision.

He called it a “body blow to the state’s traditions of open government,” adding that the decision “undermines the provision in the open records law that allows litigants to recover actual costs and attorney’s fees in cases in which access to records is wrongfully denied.”

“The court’s conservative majority has created new opportunities for authorities to deprive the public of access to public information,” he said.

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