In Wisconsin open records case, conservatives sledgehammer the state’s open records law
By Richard Moore
In a huge setback for Wisconsin’s open records laws, which Wisconsin courts have been slicing and dicing for some years now, the state Supreme Court last week delivered one more mighty blow against transparency, ruling that a denied records requester must prevail in a court ruling to win any attorneys fees and court costs.
At first blush, that sounds reasonable, but it’s not. For in the world of open records, government officials—and this is true of politicians in both parties—play a cute little trick: They often deny citizens access to records they know full well should be released simply because they don’t want to give them out, and then bet that those citizens won’t take them to court. Because, you know, court is costly.
That’s what happens in most cases. But, if and when they are ever actually sued for the records, knowing the gig is up and they might be on the hook for attorneys fees and court costs, officials release them.
Previous case law has recognized this tactic, and so the standard has been that if the requester can show that the release of the records was tied to the filing of the lawsuit—even if the lawsuit never reached an actual court ruling—then the requester was entitled to attorneys fees and costs. It was a way to keep government officials honest by disincentivizing stonewalling and obstructionism.
Now, with last week’s decision in Friends of Frame Park, U.A., v city of Waukesha, the new ruling green lights that very behavior.
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 justice Brian Hagedorn—the court’s rather shallow chameleon — to form the majority. The court’s three liberals—Jill Karofsky, Rebecca Dallet, and Ann Walsh Bradley—dissented. You won’t hear me say this very often, but the conservatives got it wrong and the liberals got it right.
Hell has indeed frozen over. Let’s take a look.
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Richard Moore is the senior investigative reporter for, and former editor of, The Lakeland Times in Minocqua, Wisconsin. Richard has won numerous awards through the years, including the 2020 Wisconsin Newspaper Association (WNA) first-place award for investigative journalism and WNA first-place awards for open government and Freedom of Information Act reporting.