WILL calls for Legislature to act on open records

Legislative options would restore the prior status quo

Yet another conservative group has added its support for the legislature to take action on the state’s open records laws, after the state Supreme Court recently overturned decades of precedent by ruling that a denied records requester must prevail in a court ruling to win any attorneys’ fees and court costs.

Saying the high court’s decision in Friends of Frame Park, U.A., v city of Waukesha could render the state’s open records’ statutes ineffective, the Wisconsin Institute for Law & Liberty issued a policy briefing this week calling for legislative reform—in effect to overturn what the high court overturned.

In the past, state courts awarded attorneys’ fees and costs not only when a requester prevailed in court but also in cases where the records were released after a lawsuit was filed but prior to a formal court ruling, if the requester could show that the filing of the lawsuit prompted the release of the records.

With the Supreme Court ruling, that is no longer the case. The change is monumental because government officials often deny citizens access to records they know should be released and then bet that those citizens won’t take them to court. Then, if and when they are ever actually sued for the records, officials release them to avoid legal fees and court costs. The costs for the requester can be prohibitive.

The decision was 4-3, with chief justice Annette Ziegler and justices Rebecca Bradley and Patience Roggensack—the three conservatives on the court—joined by swing justice Brian Hagedorn to form the majority. The court’s three liberals—Jill Karofsky, Rebecca Dallet, and Ann Walsh Bradley—correctly dissented.

This week, WILL published the policy brief, “Broken Records: A Call for Legislative Reform in Wisconsin Public Records Law,” by deputy counsel Lucas Vebber and a Bradley Foundation Legal Fellow at WILL, Samantha Dorning, who proposed legislative reforms that would restore the ability to recoup fees before a formal court determination.

Not a tooth to bite back with …