Editorial: Undo high court’s lamentable decision

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In a body blow to open and transparent government and the ability of citizen watchdog groups and journalists, the Wisconsin Supreme Court ruled 4-3 last summer that a Waukesha community group, Friends of Frame Park, was not entitled to attorney fees after suing the city of Waukesha for public records that the city later released before being ordered to do so by a court.

The high court ruling upended long-established practices and lower court rulings that had allowed requesters to recover their legal costs if a judge determined that their lawsuit had substantially prompted the “voluntary” release of the record by a government agency.

It was a terrible change that riled up citizens groups on both sides of the political spectrum.

Now, thankfully, Republicans in the state Senate and Assembly, are proposing to undo the high court’s action and return to the previous standard with proposed legislation they are circulating for co-sponsorship among their colleagues.

Rep. Todd Novak, R-Dodgeville, and Sen. Duey Stroebel, R-Saukville, are pushing the proposed legislation.

In a memo to other legislators they wrote the State Supreme Court decision “upended long-established precedent by requiring a lawsuit go to trial before legal fees can be recovered by a requester. The decision allows a government to hold on to public records until a suit is filed, then simply turn over the requested information and face no fear of having to pay costs incurred by the requester because the suit will never advance to a final decision.”

They warned that moving forward “a dangerous trend could arise where government entities withhold records with little to no recourse.”

We agree.

The real danger of the court’s ruling is that it will embolden government agencies to sit on a request for records that should be made public and wait to see if a lawsuit will be filed by a citizen group – and then, and only then cough up the records knowing that the lawsuit will be moot and they’re not on the hook for a penny in legal fees.

The court’s ruling also discourages citizen alliances and watchdog groups from going to court to seek public records they are lawfully entitled to. Many of these groups have few financial resources to pursue their causes and they’re hard-pressed to hire attorneys and go through expensive legal preparations when they may not be reimbursed.

In the Waukesha case, Friends of Frame Park, who were opposed to conversion of the park for a minor league baseball stadium, were seeking to see a draft lease agreement between the municipality and Big Top Baseball in 2017. The stadium proposal ultimately failed.

The court’s ruling and its impact is hardly in keeping with Wisconsin’s tradition of transparency in government.

Novak and Stroebel’s proposed bills have the support of the Wisconsin Institute for Law and Liberty, the Wisconsin Transparency Project, Americans for Prosperity, the Wisconsin Newspapers Association, the Wisconsin Broadcasters Association, the Wisconsin Freedom of Information Council, and, yes, the Racine Journal Times and Kenosha News.

— From the Kenosha News