A unanimous voice vote by the Wisconsin Senate on a piece of legislation is a rare occurrence. But that’s what happened on April 19 when state senators approved a bill to undo a decision by the Wisconsin Supreme Court regarding public records.
Senate Bill 117, sponsored by Sen. Duey Stroebel, R-Saukville, and Rep. Todd Novak, R-Dodgeville, would allow a judge to decide whether a records requester is entitled to attorney fees regardless of when a stalled request for public documents is finally fulfilled.
In an opinion issued last July in a case called Friends of Frame Park v. the City of Waukesha, the state Supreme Court held that if a governmental entity releases records after a suit has been filed but before a court has acted on the case, the requester is not entitled to recover attorney fees and costs.
The court based its decision on a narrow interpretation of the word “prevail” in the public records statute. It ruled that a judge must affirmatively order a unit of government to turn over public records for a requester to prevail. This effectively allows government actors to hold onto records until a requester files a lawsuit, knowing they face no penalty if they turn over the records before a judge has a chance to act.
Prior to the decision, a broader definition of “prevail” was used, allowing for fee recovery in cases where the filing of a lawsuit was deemed a substantial factor in securing the records’ release. By codifying the previously used broader definition of “prevail” in Wisconsin statutes, SB 117 will remove the perverse incentive for governments to hold on to records until a lawsuit is filed.
The Wisconsin Newspaper Association believes that transparency in government is essential to a democratic society. It helps ensure that government business is being conducted fairly and ethically. The new standard created by Friends of Frame Park threatens the ability of the public, including the media, to access information about the workings of government.
Newspapers are the eyes and the ears of the communities they serve, and accessing public records is an integral part of the reporting process. In most instances, public records are readily available. But in those cases when access is denied, newspapers often turn to the courts.
Litigation over wrongfully denied records can be expensive. Raising the bar on when requesters can recover attorney fees will have a tremendous chilling effect on the media and the public's ability to pursue public documents. If left to stand, this decision will make it financially difficult to keep government agencies accountable.
SB 117 now heads to the state Assembly, where it will be assigned to a committee for consideration. Citizens who support the public’s right to access government information should urge their state representatives to support this bill. While they’re at it, they should also thank their state senators for helping ensure that Wisconsin’s rich history of transparency in government is upheld.