950 N.W.2d 831
Wis. Ct. App.2020Background:
- On October 9, 2017 Friends of Frame Park (via a member) requested public records including a draft park-use/lease contract between the City of Waukesha and Big Top Baseball.
- The City refused, invoking the open-meetings exception for "competitive or bargaining reasons" (§19.85(1)(e)), saying the draft was in negotiation and required common-council review.
- Friends sued for mandamus under §19.37 on December 18, 2017; the common council met December 19; the City voluntarily produced the draft December 20, saying the exception no longer applied.
- The trial court granted summary judgment to the City, finding the exception was properly invoked and that Friends was not the cause of the release, so no attorney fees.
- The Court of Appeals reversed: it held that when an authority claims it withheld a record under a time-limited exception that later "expires," the proper inquiry is whether the exception was valid at the time of withholding (not solely whether the lawsuit caused release).
- The court concluded the City failed to justify withholding under §19.85(1)(e), found Friends had "prevailed in whole or in substantial part," and remanded to determine reasonable attorney fees limited to work attributable to the October 9 request.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Friends "substantially prevailed" (entitling it to fees) after the City voluntarily released the record during litigation | Friends argued the City unlawfully delayed release by improperly invoking an exception, so it substantially prevailed even though release occurred during litigation | City argued release resulted from expiration of the exception (not the lawsuit), so Friends did not cause release and is not entitled to fees | Where release is tied to a claimed expiration of an exception, the court must assess whether the exception was properly invoked at withholding; here City failed to justify withholding, so Friends substantially prevailed |
| Whether causation ("catalyst" test) is the exclusive test for fee eligibility in voluntary-release cases | Friends: causation is not sole test; merits (whether withholding violated statute) controls when authority invokes an exception that later expires | City: prior caselaw requires showing the lawsuit was a cause of release to recover fees | Court refined the law: adopt a flexible three-factor approach (timing of release; what triggered it; whether requester was entitled earlier). If delay stems from reliance on an exception, the merits inquiry (was the exception properly invoked?) controls |
| Whether §19.85(1)(e) (competitive/bargaining reasons) justified withholding the draft contract | Friends: no—draft was exchanged with Big Top (not a protected internal strategy), no active competition for the team existed by Oct 2017, and withholding until council review is not a valid basis | City: nondisclosure was necessary to protect bargaining position and allow council review before public release | City failed to meet its burden to show the exception "required" nondisclosure; withholding was unjustified |
| Scope and calculation of attorney fees to award on remand | Friends sought fees for litigation and appeal | City opposed fees (or contended reduced scope) | Remand for fee determination using lodestar methodology; fees limited to work related to the October 9 request; trial court should exclude hours unrelated to prevailing claim and consider reasonableness (including "fees for fees") |
Key Cases Cited
- Racine Educ. Ass’n v. Bd. of Educ. for Racine Unified Sch. Dist., 129 Wis. 2d 319 (Ct. App. 1986) (adopted FOIA-derived causation/catalyst test for fee awards in public-records suits)
- WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452 (Ct. App. 1996) (reiterated that a lawsuit need only be "a cause, not the cause," of release)
- State ex rel. Citizens for Responsible Dev. v. City of Milton, 300 Wis. 2d 649 (Ct. App. 2007) (limits §19.85(1)(e): protects negotiation strategy but rejects secrecy/anti-competition or future-public-input justifications)
- State ex rel. Herro v. Village of McFarland, 303 Wis. 2d 749 (Ct. App. 2007) (confidential concessions that reveal bargaining strategy can justify closure in some circumstances)
- Church of Scientology of Cal. v. U.S. Postal Serv., 700 F.2d 486 (9th Cir. 1983) (refined catalyst test; directs courts to consider timing, trigger of release, and whether exemption was eliminated)
- Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598 (2001) (criticized the catalyst theory for fee awards where relief is not court-ordered)
- Kolupar v. Wilde Pontiac Cadillac, Inc., 275 Wis. 2d 1 (2004) (endorsed lodestar method for calculating reasonable attorney fees)