The Wisconsin Supreme Court’s recent decision in a dispute over public records could have a dramatic impact on government transparency in the state, resulting in fewer records requests and, as one dissenting judge put it, ” a less informed electorate”.
The question at the heart of the case, Friends of Frame Park c. City of Waukeshafocused on the issue of attorneys’ fees – in particular, whether the government should be responsible for paying them when a document requester’s lawsuit leads an agency to turn over public documents that were wrongfully withheld, even though it did done voluntarily.
In a 4-3 decision, the Wisconsin Supreme Court ruled that a community group was not entitled to recover legal costs from the city of Waukesha under the Wisconsin Open Records Act after its lawsuit seeking gaining access to a draft city contract eventually prompted officials to release the document, but without a court order forcing their hand.
The July 6 decision sparked an immediate outcry among advocates of government transparency, who fear the decision could encourage agencies to drag document requesters into costly and drawn-out legal battles. The Wisconsin Freedom of Information Council, which submitted a friend of the court brief in the case joined by the Committee of Journalists, said in a statement that the court’s decision “deals a blow to the traditions of government open state. ”
This is because the issue of attorney fees is not trivial. The ease or difficulty of retrieving them can sometimes determine whether journalists, news organizations and others make the costly decision to sue a government agency when officials refuse to release documents in response to a public records request.
“Fee transfer,” as it is commonly known, has long encouraged litigation that serves the public interest, though it has faced its share of legal challenges over the years. Its application in cases involving requests for public records is of particular interest to journalists across the country.
As the journalism industry has faced economic difficulties in recent years, the Journalists’ Commission has often argued – in court filings and in letters to officials – that the transfer of fees is a important tool in preserving the public’s right to know.
Cost Transfer: A Pathway to Citizen-Focused Public Records Litigation
In the US legal system, parties are generally expected to cover their own attorney fees, regardless of the outcome of a case. But it’s a big hurdle for Americans who can’t afford to sue, as Heath Hooper and Charles N. Davis noted in their 2014 Missouri Law article. Review, “A Tiger with No Teeth: The Case for Fee Shifting in State Public Records”. Right.”
“The problem with this arrangement is that if someone doesn’t have the money to pay for an attorney, that person is less likely to sue to protect constitutional or statutory rights, even when those rights are clearly violated.” , they wrote. “The resulting lack of citizen litigation in state public records and open assembly laws remains a notable weakness in laws designed to protect citizen access to government proceedings and records.”
To limit these problems, some state legislatures have turned to fee shifting. When applied to areas of public interest, fee shifting laws serve to encourage and reward those who pursue litigation that benefits their fellow citizens. For this reason, they have long been applied to civil rights cases and other areas where private lawsuits can help defend the rights of the general public.
However, even though federal and state legislatures have sought to encourage this type of litigation, it is far from without risk. For fee transfer to even be considered, plaintiffs must generally be successful in their case.
In some cases, a document requester is considered successful when a court rules in their favor and orders a government agency to release the documents they requested. In other cases, however, a plaintiff may prevail and be entitled to attorneys’ fees even if an agency voluntarily discloses records, without a court order, after a lawsuit is filed.
This is a legal concept known as the “catalyst theory”. According to this theory, if a court finds that an archival claimant has “largely prevailed” in a lawsuit relating to public records, that is, if the lawsuit has proven to be the driving of a government agency’s decision to release the records to the public, even in the absence of a court order. — the government should be required to pay the applicant’s fees.
Friends of Frame Park c. City of Waukesha
Legal theory was at the heart of the dispute over attorneys’ fees in Friends of Frame Park c. City of Waukeshaa case in which a local community group sought to obtain documents relating to plans to build a baseball stadium in a city park.
The City of Waukesha initially withheld a draft stadium construction contract when it was first requested by the Friends of Frame Park, saying it could only be released after it was discussed at the of a meeting of the Common Council. The community group sued to force the city to hand over the case and cover attorney’s fees. A day after the City Council meeting, the city released the document.
A lower court found the city had “properly withheld” the draft contract and had no obligation to pay Friends of Frame Park’s attorney fees. But an appeals court overruled, finding the city improperly shielded the record by citing an exemption to the Public Records Act that did not apply. As a result, the appeals court found that the community group “largely prevailed” in its lawsuit and that the city should pay a portion of the group’s attorney fees.
The Wisconsin Supreme Court, however, disagreed. In overturning the appeals court’s decision, the four-judge majority not only concluded that the City of Waukesha acted correctly in delaying the release of the requested record, but they rejected the theory that the public records plaintiffs could “prevail in whole or in large part” – and thus recover the legal costs – apart from a court decision in their favour.
Judge Jill Karofsky, one of the three dissenting justices, explained the likely consequences of the majority decision.
“By reinterpreting the law to reward government actors for strategically freezing public access to records, today’s decision will chill the public’s right to open government,” Karofsky wrote in his dissent. “In the absence of strong fee shifting, the promise of our public records laws has become a dead letter for all but the privileged few with means, resulting in fewer requests for records, more delays in publishing information and, ultimately, a less informed electorate. ”
Golden v. New Jersey Institute of Technology
For these reasons, the Journalists’ Committee has long advocated fee-forwarding provisions as a means of promoting open government, filing several amicus curiae briefs addressing the issue and supporting legislative efforts to enact strict fee transfer provisions.
But perhaps our most high-profile engagement on this issue came in New Jersey, where lawyers for the Committee of Journalists successfully argued a years-long public records dispute on behalf of Pulitzer Prize-winning journalist Daniel Golden.
In 2015, Golden was working on a book that would become Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities. As part of his research, Golden filed for registration under New Jersey’s Open Public Records Act for e-mail records of New Jersey Institute of Technology’s correspondence with the CIA and FBI.
The university didn’t release much in response, taking inspiration from the FBI to keep most of the responsive emails secret. Later that year, attorneys for the Committee of Reporters and Bruce S. Rosen of McCusker, Anselmi, Rosen & Carvelli, PC sued the university on behalf of Golden and publicist Tracy Locke for the remaining records. After a legal wrangle between the FBI and the NJIT over their respective responsibilities in the case, the NJIT released nearly 4,000 pages of previously withheld documents.
Golden published her book in October 2017, but it’s not nearly two years later that a lingering issue has been fixed. On August 14, 2019, the United States Court of Appeals for the Third Circuit ruled that the author and publicist were entitled to recover attorney’s fees from the university, concluding that “it does not There is no indication in the record that NJIT would have produced the previous withheld documents in the absence of Golden and Locke’s trial.
*Luke Henkhaus is a former communications intern with the Reporters Committee for Freedom of the Press.