Statutory Interpretation – Public Records – Attorney Fees

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WI Court of Appeals – District II

Case Name: Friends of Frame Park, U.A., v. City of Waukesha

Case No.: 2019AP96

Officials: Neubauer, C.J., Gundrum and Davis, JJ.

Focus: Statutory Interpretation – Public Records – Attorney Fees

This is a public records case involving a draft contract, exchanged between Defendant-Respondent City of Waukesha (the City) and a private entity, Big Top Baseball, LLC (Big Top), setting forth proposed terms under which Big Top’s professional baseball team would play in a stadium to be constructed in Waukesha’s Frame Park. Plaintiff-Appellant Friends of Frame Park, U.A. (Friends), a community organization, was rebuffed in its attempt to obtain the draft contract from the City and sought a writ of mandamus. The City then released the record and, some months later, moved for summary judgment. The trial court granted the City’s motion, reasoning that the City properly relied on a public records law exception to initially withhold the draft contract and that in any event, Friends’ lawsuit did not cause the record’s eventual release (i.e., Friends was not a “prevailing party” entitled to attorney fees). Friends now appeals.

At the outset, we acknowledge that the City voluntarily released the draft contract shortly after Friends filed suit. Ordinarily, where a party obtains the relief it seeks while litigation is pending, the case becomes moot. In public records cases, however, the relief sought typically includes more than the release of records—it also includes the requesting party’s attorney fees. The public records statute allows fees to a requesting party who “prevails in whole or in substantial part.” WIS. STAT. § 19.37(2)(a). Thus the issue before us is whether Friends substantially prevailed in this action.

The test most often invoked to determine the prevailing party in a public records case is based on causation; it asks whether the lawsuit is “a cause, [if] not the cause, of the records’ release.” WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 459, 555 N.W.2d 140 (Ct. App. 1996). Here, the City denies that the lawsuit caused the release. Instead, the City maintains, it released the record because the statutory exception it initially invoked (allowing records to be withheld for “competitive or bargaining reasons”) no longer applied.

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.” Rather, the key consideration is whether the authority properly invoked the exception in its initial decision to withhold release. This result follows from the language of the statute, which requires compliance with a records request “as soon as practicable and without delay.” See WIS. STAT. § 19.35(4)(a). A plaintiff with standing to seek a withheld record in a mandamus action should generally be considered to have “substantially prevailed” where it demonstrates a violation of this statute; that is, an unreasonable delay caused by the improper reliance on an exception. In reaching this result, however, we must reconcile what, at least superficially, appears to be inconsistent language from prior decisions addressing how and whether a public records plaintiff can recover attorney fees following voluntary release during litigation.

Application of this rule leads us to reverse. We hold that the City’s reliance on the “competitive or bargaining reasons” exception was unwarranted and led to an unreasonable delay in the record’s release. Consequently, even if the lawsuit was not an actual cause of the release, Friends has “prevail[ed] in whole or in substantial part” and is entitled to some portion of its attorney’s fees, to be determined under the parameters set forth herein.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.