In Journal Times v. City of Racine Board of Police and Fire Commissioners, 2015 WI 56, __ Wis. 2d __, __, N.W.2d __ the Wisconsin Supreme Court recently determined the Newspaper did not prevail in substantial part and, therefore, was not entitled to recover fees and costs incurred in litigation of an Open Records Law issue.
Three finalists, two of whom were minorities, had been announced to the public as potential successors to the retiring police chief in Racine. When the nonminority finalist withdrew his application, the Commission called a closed meeting to discuss. During the meeting, a motion was made to reopen the search, and the motion passed on a 3-2 vote. The newspaper made a written request to the Commission seeking the voting information on the motion shortly after the meeting, and also sought the name of the individuals who made and seconded the motion. The Commission denied the request on the grounds that voting is integral to the deliberation process and did not need to be disclosed. The paper asked the Commission to reconsider, and in response the Commission denied the request on the public policy ground that one or more of the commissioners feared for his/her safety if the voting information was released. The Commission later offered a compromise wherein it agreed to release the information to the newspaper within five days of the hiring of a new police chief, but the paper declined and ultimately filed a mandamus action. Six days later, the Commission provided the requested information to the newspaper. For the first time, the Commission asserted in the litigation that there was no responsive record available at the time of the paper’s initial request.
After discovery, the circuit court granted summary judgment for the Commission. On appeal, the court of appeals held that, “although the Newspaper’s record request became moot when the Commission provided the information, the action should not be dismissed because [t]he Newspaper still has a viable claim for attorney fees and costs” (internal quotations omitted)(alteration in original). In addition, the court held that “the Commission is estopped from arguing that a record of the vote did not exist.”
On review, the Wisconsin Supreme Court noted that the newspaper was only seeking to recover attorney fees and costs. The court declined to address Open Meetings Law issues because the lawsuit was filed under the Open Records Law and the District Attorney had not been asked to file an Open Meetings Law Complaint. In addressing the Open Records Law issues, the court found the Newspaper’s request could have reasonably been interpreted as a request for information as opposed to a request for a record. Further, the court determined the Commission’s failure to raise the point that no responsive record existed in its initial response did not preclude use of this defense later. While a party must specify reasons for nondisclosure when denying an open records request, a court may nonetheless consider reasons for nondisclosure not specified by the records custodian when there is a “clear statutory exception” to disclosure. Here, the Open Records Law “provides neither a right to inspect nor a duty to disclose a non-existent record.”
Ultimately the court determined that the Commission acted with reasonable diligence in providing the requested information to the newspaper, even though it was not required to do so. Because the Commission acted reasonably and the Newspaper received the requested information, the Newspaper did not substantially prevail and was not entitled to recover attorney fees and costs under the Open Records Law.