Gavel, court, legal, judge, lawsuit

(The Center Square) – Wisconsin lawmakers have been asked to clarify the state’s open records laws due to a recent Supreme Court decision that could hurt transparency.

The Wisconsin Institute for Law and Liberty on Thursday issued a report that outlines the danger to public information now that the state’s high court has given government a workaround in open records and Freedom of Information cases.

“When an individual requests records, and a government entity wrongfully refuses to turn them over, the individual may file a lawsuit to obtain the records. Historically, once that suit was filed, the requester could recover the attorney’s fees they incurred from bringing the suit, even if the government agency promptly backed down and turned the records over before the judge ruled on the case,” WILL”s report begins. “However, a recent Supreme Court decision made clear that the statutory language might not allow fee recovery in such instances – as a result, government actors potentially now have a reason not to turn records over promptly.”

“Four justices agree that to ‘prevail in whole or in substantial part’ means the party must obtain a judicially sanctioned change in the parties' legal relationship,” Justice Brian Hagedorn wrote in the 4-3 decision on July 6.

WILL’s  Lucas Vebber said the impact of the ruling means governments can refuse to release public information even after being sued, then release it just before a judge issues a ruling and avoid any accountability for their actions.

“Without action, Wisconsin’s public records laws could be rendered toothless,” Vebber said. “The Wisconsin legislature should make it a priority to act to ensure public officials are transparent and accountable to voters and taxpayers.”

WILL wants lawmakers to:

  • Add a test into the statute that would simply require the court to find that the litigation itself caused the records to be released in order to award fees.
  • Adopt the same definition of “prevail” that exists under federal law, allowing litigants to recover fees in the event the government provides records after a suit has been filed.
  • Allow other forms of relief in public records suits beyond simply a mandamus action. In the open meetings context, for example, the law may be enforced by seeking “legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment, as may be appropriate under the circumstances.”