The Journal Times v. City of Racine Board of Police and Fire Commissioners, 866 N.W.2d 563

Background

The Journal Times (Newspaper) asked the City of Racine Police & Fire Commission for the recorded motions and individual votes from a closed special meeting (Feb 20, 2012); no written minutes existed at the time.
The Commission initially denied the request (citing case law and safety/balancing concerns) but later (March 22) voluntarily provided the requested information (not a formal record) after hiring a new chief. Draft minutes were not created and approved until May 2012.
The Newspaper filed a mandamus action under the Wisconsin public records law (Wis. Stat. § 19.37) seeking production (and, after information was provided, attorney fees, damages, and costs under § 19.37(2)(a)). Service occurred after the information was given.
The circuit court granted summary judgment to the Commission (finding no responsive record existed at the time of request). The court of appeals reversed only as to remanding for a fee/cost determination. The Wisconsin Supreme Court granted review.
Supreme Court held Newspaper did not prevail in substantial part and thus is not entitled to fees/damages under § 19.37(2)(a); the defense that no record existed may be considered even if raised after suit began. The open meetings-law remedy was not before the court.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Newspaper prevailed "in whole or in substantial part" under § 19.37(2)(a) and so is entitled to fees, damages, costs	The Newspaper says the Commission unlawfully denied/delayed access (misapplied balancing test and later abandoned its stated reasons), so fees and damages are due as a matter of law	Commission says no responsive record existed when requested; it provided information voluntarily and acted with reasonable diligence, so requester did not "prevail"	Held: Newspaper did not prevail in substantial part; no award of fees/damages because Commission did not unlawfully deny or delay a record that did not exist
Whether a custodian can assert that no responsive record existed even if it did not state that defense before mandamus suit (interaction of Breier and Blum)	Newspaper invokes Breier: a custodian must give specific reasons for denial and cannot later assert different defenses	Commission relies on Blum: courts may consider clear statutory exceptions (including nonexistence) even if not stated in the denial	Held: Blum controls here — the court may consider the defense that the record did not exist; nonexistence is a valid statutory-based reason for denial
Whether the request was sufficiently a records request (vs. merely seeking information)	Newspaper (and concurrence) contends the e-mails were valid record requests seeking recorded motions/votes under § 19.88(3)	Commission contends request reasonably read as seeking information (not an existing record) and thus it was not required to produce a record immediately	Held: Majority finds request could reasonably be perceived as for information; concurrence disagrees (says request was a valid records request). Court resolves outcome on lack of existing record and reasonable diligence rather than invalidity of request
Whether the public records law is the proper vehicle to enforce alleged open meetings violations (e.g., failure to create minutes promptly)	Newspaper argues open‑meetings duties (§ 19.88(3)) should be enforceable via public records law remedy	Commission relies on precedent that open meetings enforcement is via district attorney/AG under § 19.97 and Zinngrabe — public records law does not create duty to make records	Held: Held that open‑meetings remedies are separate; the court will not adjudicate open‑meetings violations in this public‑records mandamus action; whether a record should have existed is an open‑meetings issue, not one for § 19.37 mandamus relief

Key Cases Cited

Newspapers, Inc. v. Breier, 89 Wis. 2d 417 (1979) (custodian must state specific public‑policy reasons for refusal; court reviews only asserted reasons)
State ex rel. Blum v. Bd. of Educ., School Dist. of Johnson Creek, 209 Wis. 2d 377 (Ct. App. 1997) (court may consider clear statutory exceptions to disclosure even if not asserted in initial denial)
State ex rel. Zinngrabe v. School Dist. of Sevastopol, 146 Wis. 2d 629 (Ct. App. 1988) (public records law governs access to existing records; duty to create/maintain records is governed by open meetings law)
Racine Educ. Ass'n v. Bd. of Educ. for Racine Unified Sch. Dist. (Racine Educ. Ass'n II), 145 Wis. 2d 518 (Ct. App. 1988) (no fees where delay was unavoidable and authority acted with reasonable diligence)
ECO, Inc. v. City of Elkhorn, 259 Wis. 2d 276 (Ct. App. 2002) (fees and damages awarded where city failed to respond and withheld records that existed)
State ex rel. Vaughan v. Faust, 143 Wis. 2d 868 (Ct. App. 1988) (fees awarded where custodian failed to respond and gave no explanation)