FOIC releases statement regarding court ruling on fee recovery

Statement by Bill Lueders, Wisconsin Freedom of Information Column, on circuit court ruling and proposed legislation regarding fee-recovery issue

Yesterday, Dane County Circuit Court Judge Everett Mitchell issued a ruling denying the ability of the Midwest Environmental Advocate to recover fees of a case involving a public official who violated the state’s open records law, because it did not meet the standard set in a recent Wisconsin Supreme Court decision.

In Friends of Frame Park v. City of Waukesha, decided in July, the court’s conservative majority changed the rules to make it more difficult, and in some cases impossible, for a records requester to recover the legal fees and costs incurred when they have to sue before records are released. Judge Mitchell’s decision provides an unfortunately perfect example of the damage that has been done to the open records law’s critical fee recovery process.

Judge Mitchell agreed that Frederick Prehn, an appointee of Gov. Scott Walker who had refused to leave his post after his term expired, had thumbed his nose at the records law, failing to provide responsive records over an 18-month period.

“There is no dispute that Prehn dishonored [his obligation] to transparent government; there is no dispute that he delayed access to the records of his official acts as a government official for over one year and there is no dispute that he had no lawful reason to do so,” Everett wrote. Yet the standard set in Friends of Frame Park, he said, was not met, and so he was bound to rule in Prehn’s favor, which he did.

On the same day that this ruling was issued, legislation was proposed to fix the problem created by the Frame decision, by restoring the ability of requesters to recover fees when they can prove that suing was “a substantial factor” in securing the release of public records. This can be accomplished by adding a single sentence to the open records law.

This legislation, introduced by Rep. Todd Novak (R-Dodgeville) and Sen. Duey Stroebel (R-Cedarburg) is backed by Wisconsin Institute for Law & Liberty, which outlined its position that the Friends decision required a legislative fix in a July report, “Broken Records.” Other supporters include the Wisconsin Freedom of Information Council, Wisconsin Newspaper Association, Wisconsin Broadcasters Association, Wisconsin Transparency Project and Americans for Prosperity.

We hope that the public and the media that serve it will take notice of Judge Mitchell’s ruling and the effort in the legislature to solve the problem he identified with the court’s decision in Friends of Frame Park. The bill to accomplish this deserves bipartisan support.