849 N.W.2d 888
Wis. Ct. App.2014Background
- The City of Racine Board of Police and Fire Commissioners held a closed meeting on Feb. 20, 2012, and a motion to reopen the police chief search passed 3–2.
- The Journal Times requested the recorded motions and roll-call votes from that closed meeting on Feb. 22, 2012.
- On Mar. 7 the Commission denied the request citing deliberation privilege; on Mar. 9 it declined disclosure citing commissioners' safety concerns and offered to provide the information after a new chief was hired.
- The Newspaper filed a mandamus action under the Open Records Law on Mar. 16; the Commission produced the requested vote information on Mar. 22, rendering the writ moot.
- In its answer nearly two months later the Commission claimed no responsive record ever existed, and the trial court dismissed the case because no written record existed at the time of the request.
- The court of appeals reversed, holding the Newspaper may recover attorney fees if the litigation was a cause of the Mar. 22 release and estopping the Commission from denying that a record existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commission violated Open Meetings/Records law by withholding motions and roll-call votes from a closed meeting | The requested motions/votes are required to be recorded, preserved, and disclosed unless a statutory reason supports nondisclosure; the Commission gave no valid statutory basis | The Commission argued votes were part of deliberation and thus nondisclosable and later claimed no record ever existed | Court treated the voluntary release as moot on mandamus claim but left open attorney-fee questions; did not accept the no-record defense for fee purposes (estopped) |
| Whether the case was moot after voluntary release and whether the Newspaper can recover attorney fees | The Newspaper argued it may recover fees if the lawsuit was a cause (not necessarily the sole cause) of the release | The Commission relied on mootness and later on absence of a record to avoid liability for fees | Court held the release mooted the mandamus claim but remanded to determine whether the suit was a cause of the release; if so, fees and costs may be awarded under statute |
| Whether the Commission may assert that no record existed after previously indicating it would release the information later | The Newspaper argued the Commission’s earlier communications induced reliance that a record existed and would be provided later, so the Commission should be estopped from claiming no record existed | The Commission asserted there was no responsive written record at the time of the request (minutes drafted later) | Court applied equitable estoppel against the Commission: its March 9 statement that it would not release "at this time" and would release after hiring induced reliance, so it cannot later claim no record existed |
Key Cases Cited
- State ex rel. Cities Service Oil Co. v. Board of Appeals, 21 Wis. 2d 516 (discussion of vote as part of deliberation)
- Oshkosh Nw. Co. v. Oshkosh Library Bd., 125 Wis. 2d 480 (withholding closed-meeting records requires specific showing at time of request)
- Watton v. Hegerty, 311 Wis. 2d 52 (government must state statutory reasons when denying records)
- Racine Educ. Ass'n v. Board of Educ., 129 Wis. 2d 319 (voluntary release after mandamus renders claim moot; fees still possible)
- WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452 (fees possible if litigation was a cause of release)
- Milas v. Labor Ass'n of Wis., Inc., 214 Wis. 2d 1 (elements of equitable estoppel)
- DOR v. Moebius Printing Co., 89 Wis. 2d 610 (estoppel against government principles)
- Fritsch v. St. Croix Central Sch. Dist., 183 Wis. 2d 336 (limitations on applying estoppel to government)
- State v. Beaver Dam Area Dev. Corp., 312 Wis. 2d 84 (weight to attorney general opinions on open meetings/records law)