Your Right to Know: Fee recovery is key to transparency

By CHRISTA WESTERBERG

Many states, including Wisconsin, have public records laws. But that doesn’t mean requesters always get the records they seek, or even that the laws are followed.

What provisions in a state’s laws are most associated with compliance?

The answer may surprise you. It’s not the strength of a law’s penalty provisions or whether a state has an ombudsman office to mediate records disputes (Wisconsin does not).  

Instead, a 2019 study by University of Arizona journalism professor David Cullier found a significant correlation between compliance and laws that “mandate judges to impose attorney fees” to requesters deemed to have been wrongly denied access to records. 

CHRISTA WESTERBERG

That’s why a recent Wisconsin court of appeals decision, in a case known as Meinecke v. Thyes, is good news. It held that if a court orders the release of records—even if it’s only some of the records—the requester has “prevailed” in substantial part and is thus entitled to attorney fees. While Wisconsin’s open records law has a mandatory fee-shifting provision, this case for the first time established that getting an order for records was sufficient to trigger it.

At issue was a village trustee’s request for five categories of records from the village she served.  A circuit court found the village had unlawfully withheld some of the records and ordered them released, but then denied the trustee’s request for attorney fees because the trustee did not obtain access to all the records she sought and that village officials did not act with “wanton disregard” for the law, among other considerations.

That ruling was appealed, with the Wisconsin Freedom of Information Council, Wisconsin Newspaper Association and Wisconsin Broadcasters Association filing a “friend of the court” brief in favor of the trustee.  (My law firm authored the brief.)

The appeals court ruled that the trustee was entitled to fee recovery, citing the open records law’s statement that “all persons are entitled to the greatest possible information regarding the affairs of government” and its direction that the law be liberally construed in favor of public access. 

Laws that allow requesters to recover attorneys fees have always been important to ensuring access to information. For example, they allow people who could not otherwise afford  an attorney to hire one on a contingent-fee basis to bring an open records case. 

The Wisconsin Supreme Court is also considering a different attorney fees case this term. It will decide whether requesters can get attorney fees when an agency voluntarily produces records after a suit is filed, if the initial denial was unlawful.  

The Wisconsin Freedom of Information Council joined with four other organizations in filing a “friend-of-the-court” brief urging a “yes” answer to this question.

A stronger fee recovery standard means a government that is less willing to test the limits of its ability to withhold records. As Cullier pointed out, “Certainly, agencies might not worry about a $1,000 fine or other slap on the wrist, but it appears they pay attention to paying tens if not hundreds of thousands of dollars to a successful plaintiff’s attorney, not to mention the bad publicity that would create for the agency.”

The court of appeals decision that getting a court order directing the release of records should entitle a requester to fees is a welcome clarification to Wisconsin’s records law.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Christa Westerberg, an attorney at Pines Bach law firm in Madison, is the group’s vice president. She also is legal counsel to the Wisconsin Center for Investigative Journalism.

Comments are closed.

  • Editorial cartoon

    November 26th, 2021
    by

    Letter to the editor: It’s important to keep Red Cross Blood Drive in Wilton

    November 26th, 2021
    by

    By LARRY BALLWAHN | Wilton St. Paul’s Lutheran Church in Wilton has sponsored Red Cross blood drives since 1995. When […]


    Letter to the editor: Congress should support Medicare Advantage

    October 28th, 2021
    by

    In Wisconsin, over 500,000 seniors like me depend on Medicare Advantage to help us stay healthy and keep our healthcare costs down.


    Letter to the editor: Kudos to community gardeners in Norwalk, Ontario

    October 21st, 2021
    by

    As the seasons change, I just wanted to publicly thank those individuals who have helped keep our communities beautiful for the past several months.


    Letter to the editor: Royall should have agreed to Oct. 21 football game with Brookwood

    October 15th, 2021
    by

    By PAUL OLBERT Brookwood High School teacher The one game on the high school football docket that I look forward […]


  • Ontario police focusing on property cleanup

    September 15th, 2021
    by

    By DAVE RYNES | Ontario Police Chief Ontario has started a program to help the village present a better image […]


    Wisconsin hospitals ask for communities’ help in stemming Covid-19 cases

    September 15th, 2021
    by

    Hospitals and healthcare facilities throughout southcentral Wisconsin are experiencing a high volume of inpatients, limiting hospital beds and putting a strain on resources. 


    Letter to the editor: Town of Forest’s decision on dark-sky initiative wasn’t based on facts

    September 15th, 2021
    by

    Who would have thought that a recent request brought before a local township board would have stirred the proverbial poop pot?


    Letter to the editor: Is cursive not taught nationwide?

    September 15th, 2021
    by

    The lack of teaching cursive writing is not just local.


    Letter to the editor: ‘Subpar Parks’ is worthwhile read on natural, cultural beauty

    September 15th, 2021
    by

    u enjoy the natural and cultural beauty of our national parks, you might like a new book by Amber Share entitled “Subpar Parks.”


    Guest view: State school boards leader calls for civility, respect

    September 15th, 2021
    by

    We’ve become increasingly alarmed at the recent reports of personal threats of violence and harassment directed at school board members across the state. 


  • [Advertisement.]
  • Archives