FRIENDS OF FRAME PARK, U.A., Plaintiff-Appellant, v. CITY OF WAUKESHA, Defendant-Respondent.†
Case No.: 2019AP96
COURT OF APPEALS OF WISCONSIN
Opinion Filed: September 16, 2020
2020 WI App 61
PUBLISHED OPINION. Submitted on Briefs: November 26, 2019. JUDGES: Neubauer, C.J., Gundrum and Davis, JJ. †Petition for Review Filed.
Appellant ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Joseph R. Cincotta of Milwaukee.
Respondent ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the brief of John M. Bruce of West & Dunn, LLC of Two Rivers.
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
Appeal No. 2019AP96
STATE OF WISCONSIN
Cir. Ct. No. 2017CV2197
IN COURT OF APPEALS
APPEAL from an order of the circuit court for Waukesha County: MICHAEL O. BOHREN, Judge. Reversed and cause remanded with directions.
Before Neubauer, C.J., Gundrum and Davis, JJ.
¶2 At the outset, we acknowledge that the City voluntarily released the draft contract shortly after Friends filed suit. Ordinarily, where a party obtains the relief it seeks while litigation is pending, the case becomes moot. In public records cases, however, the relief sought typically includes more than the release of records—it also includes the requesting party‘s attorney fees. The public records statute allows fees to a requesting party who “prevails in whole or in substantial part.”
¶3 The test most often invoked to determine the prevailing party in a public records case is based on causation; it asks whether the lawsuit is “a cause, [if] not the cause, of the records’ release.” WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 459, 555 N.W.2d 140 (Ct. App. 1996). Here, the City denies that the lawsuit caused the release. Instead, the City maintains, it released the record because the statutory exception it initially invoked (allowing records to be withheld for “competitive or bargaining reasons“) no longer applied.2
¶4 We hold that where litigation is pending and an authority3 releases a public record because a public records exception is no longer applicable, causation is not the appropriate inquiry for determining whether the requesting party has “substantially prevailed.” Rather, the key consideration is whether the authority properly invoked the exception in its initial decision to withhold release. This result follows from the language of the statute, which requires compliance with a records request “as soon as practicable and without delay.” See
¶5 Application of this rule leads us to reverse. We hold that the City‘s reliance on the “competitive or bargaining reasons” exception was unwarranted and led to an unreasonable delay in the record‘s release. Consequently, even if the lawsuit was not an actual cause of the release, Friends has “prevail[ed] in whole or in substantial
Factual Background
¶6 Friends is a Wisconsin unincorporated association that formed in 2017 because its members—Waukesha citizens, property owners, and taxpayers—were interested in the City‘s purported plan to build and operate a baseball stadium in Frame Park in the City of Waukesha. One concern was that the City might contract with private entities, Big Top and Northwoods League Baseball (Northwoods League), to run the stadium and its baseball team. Big Top owned several baseball teams and operated another stadium in Wisconsin; the Northwoods League owned the league in which these teams played. Friends was interested in the details of the plan, such as how taxpayer funds would be used and to what extent Big Top would profit from the project.
¶7 On October 9, 2017, Friends submitted a public records request to Kevin Lahner, the City Administrator, seeking “any Letters of Intent ... or Memorandum of Understanding ... or Lease Agreements between Big Top Baseball and[/]or Northwoods League Baseball and the City of Waukesha during the time frame of 5-1-16 to the present time frame.”4 Two weeks later, the City attorney responded by letter, denying the request. The letter explained that “[a] park use contract with Big Top Baseball is presently in draft form.” The letter then articulated two rationales, somewhat overlapping, for withholding this “draft contract.” Both rationales relied on
Under
¶8 The letter‘s first rationale for nondisclosure was that another entity was competing with the City for a baseball team:
Because the contract is still in negotiation with Big Top, and there is at least one other entity that may be competing with the City of Waukesha for a baseball team, the draft contract is being withheld from your request .... This is to protect the City‘s negotiating and bargaining position.
The implication was that disclosure would either cause the City to lose the baseball team to the “other entity” referenced or force the City to contract on less favorable terms to secure the team.
¶9 A second, related rationale was that disclosure prior to the Waukesha common council review would hamper the City‘s ability to negotiate favorable terms within the draft contract:
The draft contract is subject to review, revision, and approval of the Common Council before it can be finalized, and the Common Council have [sic] not yet had an opportunity to review and discuss the draft contract. Protecting the City‘s ability to negotiate the best deal for the taxpayers is a valid public policy reason to keep the draft contract temporarily out of public view .... There currently is a need to restrict public access for competitive and bargaining reasons until the Council has an opportunity
to review the draft and determine whether it wants to adopt it or set different parameters for continued negotiations with the interested parties. If the contract‘s terms were made public, it would substantially diminish the City‘s ability to negotiate different terms the Council may desire for the benefit [of] the City.
The obvious implication was that the public could react to the draft contract in ways that might undermine the City‘s ability to negotiate the common council‘s preferred terms.
¶10 On December 18, 2017, Friends filed suit under
¶11 The common council met the next day, on December 19. Council members had yet to view the draft contract, but it was anticipated that the contract would be shared and debated at the meeting. From our review of the record, however, it is unclear what (if anything) was actually discussed and decided on this topic. The meeting minutes merely state that there were “[c]itizen speakers registering comments against baseball at Frame Park“; that the “City Administrator‘s Report” included a “Northwoods Baseball League Update“; and that an “Item for next Common Council Meeting under New Business” was “Create an ADHOC Committee for the purpose to address Frame Park and Frame Park issues.” There is nothing else in the record to indicate whether the common council saw, discussed, or approved the draft contract at the meeting.
¶12 On the following day, December 20, the City attorney e-mailed Friends and attached the draft contract. The parties do not dispute that this document was created by and shared among Big Top and City representatives in a back-and-forth exchange.5 The City attorney‘s e-mail explained that the document was “being released now because there is no longer any need to protect the City‘s negotiating and bargaining position.”
¶13 Although Friends had now received the draft contract just two days after filing suit, the litigation continued, including with discovery and motion practice. Perhaps this is because the document was only one of several requested: Friends filed additional requests on December 8, 2017, and on January 25, February 2, and March 6, 2018. Friends also filed an amended complaint including some of
¶14 The City filed for summary judgment, claiming that the action was moot because the City had turned over all documents responsive to all of Friends’ requests. Friends’ response focused on whether the draft contract, requested on October 9, 2017, had been timely provided; that is, whether the City correctly invoked
¶15 Despite this assertion, on further questioning Lahner could not specify how this “Kelneck group” (as we term it) was competing with the City in a manner that might require withholding the draft contract. When asked, “Who w[as] [the Kelneck group] competing with?” Lahner replied, “I don‘t know.” Our best surmise, based on the entirety of the transcript, is that the City at all relevant times was partnered with Big Top, and that the Kelneck group was a competitor of Big Top that may have been attempting to secure the same or another Northwoods League team for a different municipality. Regardless, any concern about competition appears to have been resolved by the time of the records request. According to an e-mail from Lahner to various City representatives, by “July/August” of 2017 the Northwoods League “had chosen Big Top Baseball as [its] preferred partner for a new team in [the Waukesha] area.” At this point the City “began working through the negotiation process for a use agreement for Frame Park.”
¶16 In his deposition, Lahner also discussed the City‘s second rationale for invoking the “competitive or bargaining reasons” exception: the purported need for common council review prior to any public disclosure. Lahner again could not explain why drafts exchanged between the City and a third party (i.e., Big Top) could not immediately be shared with the common council (and thus, by the City‘s logic, the public). When asked point-blank how negotiations would have been impacted “[i]f the [common] [c]ouncil had been provided all the red lines [of the draft contract] on a sort of realtime or rolling basis or ongoing basis through the summer of [2017],” Lahner again responded, “I don‘t know.” Nor could Lahner explain how disclosure could affect the City‘s bargaining position where Big Top itself was drafting and exchanging versions of the draft contract.
¶17 The trial court held that the City properly invoked the “competitive or bargaining reasons” exception of
that the city was negotiating with Bigtop Baseball, [and] didn‘t want to negotiate it, frankly, in public.... [The City did not want] to undermine what they might be doing with Bigtop Baseball or undermin[e] what the city may be doing with other entities involved with seeking a baseball establishment in one of the city parks.
The trial court was “satisfied” that the City attorney‘s letter outlined this rationale with the specificity required under
¶18 The trial court next considered whether Friends was entitled to attorney‘s fees. Although the parties did not brief this issue in any depth, the court noted the prevailing test: a public records action is moot where the record is voluntarily disclosed, but the plaintiff may still recover attorney fees under
Discussion
Standard of Review and Public Records Law Principles
¶19 Application of the public records law to undisputed facts is a legal question we review de novo. Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶17, 300 Wis. 2d 290, 731 N.W.2d 240. Similarly, under summary judgment standards, we review de novo whether there are genuine issues of material fact and whether a party is entitled to judgment as a matter of law. Chapman v. B.C. Ziegler & Co., 2013 WI App 127, ¶2, 351 Wis. 2d 123, 839 N.W.2d 425.
¶20 The public records law is a “fundamental concept[] in our state‘s history of transparent government,” and the “clearly stated, general presumption of our law is that all public records shall be open to the public.” Journal Times v. City of Racine Bd. of Police & Fire Comm‘rs, 2015 WI 56, ¶45, 362 Wis. 2d 577, 866 N.W.2d 563 (citation omitted). This concept is reflected in the statute itself:
[I]t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government .... To that end [the public records law] shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.
¶21 There are a variety of statutory and common law exceptions to the public records law, including those borrowed from the open meetings law, but we must strictly construe any public record
To Decide the Issue of Attorney Fees, We Must Determine Whether the City Properly Invoked WIS. STAT. § 19.85(1)(e)
¶22 Because the City voluntarily disclosed the draft contract, the only consequence this appeal has to these parties is whether Friends is entitled to attorney‘s fees. This is not the first time we have considered the question of attorney fees in what might otherwise be a moot case. In many (but not all) such cases we have treated this as a question of causation: Was the lawsuit a cause-in-fact of the record‘s release? We formulated this test in Racine Education Association v. Board of Education for Racine Unified School District, 129 Wis. 2d 319, 385 N.W.2d 510 (Ct. App. 1986). There, the School District made no answer to a public records request, so Racine Education Association (REA) brought a mandamus action. Id. at 323. The School District then invoked
¶23 We agreed that the case was moot insofar as it concerned the release of the requested records; we also held that no exceptions to the mootness doctrine applied. Id. at 323-25. We determined, however, that under
It is true that a court order compelling disclosure of information is not a condition precedent to an award of fees ... but it is equally true that an allegedly prevailing complainant must assert something more than post hoc, ergo propter hoc .... Instead, the party seeking such
fees in the absence of a court order must show that prosecution of the action could reasonably be regarded as necessary to obtain the information, and that a causal nexus exists between that action and the agency‘s
surrender of the information. Whether a party has made such a showing in a particular case is a factual determination that is within the province of the district court to resolve. In making this determination, it is appropriate for the district court to consider, inter alia, whether the agency, upon actual and reasonable notice of the request, made a good faith effort to search out material and to pass on whether it should be disclosed.... If rather than the threat of an adverse court order either a lack of actual notice of a request or an unavoidable delay accompanied by due diligence in the administrative processes was the actual reason for the agency‘s failure to respond to a request, then it cannot be said that the complainant substantially prevailed in his suit.
Racine Educ. Ass‘n, 129 Wis. 2d at 326-27 (citing to Cox, 601 F.2d at 6) (citations omitted). Because the test was “largely a question of causation,” we did not consider whether there was a violation of the statute. Racine Educ. Ass‘n, 129 Wis. 2d at 327-28. In fact, on appeal after remand, we declined to decide the “threshold issue” of whether the requested information even constituted a public record. Racine Educ. Ass‘n v. Board of Educ. for Racine Unified Sch. Dist. (Racine Educ. Ass‘n II), 145 Wis. 2d 518, 520 n.2, 427 N.W.2d 414 (Ct. App. 1988). Instead, we decided that the requesting party was not entitled to fees because the lawsuit was not a cause of the release; rather, there was “an unavoidable delay accompanied by due diligence in the administrative processes.” Id. at 524.
¶24 In the Racine Education Association decisions, our stated focus on the lawsuit as a cause-in-fact clearly dovetailed with our consideration of whether there was an unreasonable (as opposed to an unavoidable) delay in release. If we had determined that there was an unreasonable delay in that case, the outcome undoubtedly would have been different. Thus the Racine Education Association decisions adopted causation as the test for prevailing-party status, but the application of that test was intertwined with the court‘s finding that there was no violation of the statute: the “cause” of the release was not the commencement of a lawsuit but the authority‘s prompt action once the records became available.
¶25 In any event, throughout the years we have continuously focused on causation, or what federal circuits term the “catalyst theory.” See, e.g., State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 872-73, 422 N.W.2d 898 (Ct. App. 1988) (a requester “prevails in substantial part” when the record holder “voluntarily ceases an unexplained delay in making disclosure” following the institution of the mandamus action); State ex rel. Eau Claire Leader-Telegram v. Barrett, 148 Wis. 2d 769, 773, 436 N.W.2d 885 (Ct. App. 1989) (“The test to determine whether a party has prevailed under [
¶26 Nonetheless, several cases focus on whether an unreasonable delay was caused by the authority‘s improper reliance on an exception under the public records law, regardless of the subsequent voluntary disclosure. For example, in Portage Daily Register v. Columbia County Sheriff‘s Department, 2008 WI App 30, ¶8, 308 Wis. 2d 357, 746 N.W.2d 525, we noted that “the present appeal is not moot because our ruling will have the practical effect of determining the [plaintiff‘s] right to recover damages and fees under
¶27 In many, if not most, public records cases, it may not matter much whether “prevailing party” status turns on causation or on the mere fact of a statutory violation. After all, where a party inexcusably delays in releasing records to a point that prompts litigation, it can typically be inferred that the lawsuit was at least “a” cause of the release. See WTMJ, Inc., 204 Wis. 2d at 459 (“[I]n an open records case, causation is often an inference drawn from documentary or undisputed facts.“). But that cannot always be the inference, particularly where the authority expressly relies on a time-limited exception.
¶28 Here, for example, the City unquestionably delayed the release of the requested record, prompting a lawsuit. It only released the document because, in its view, the December 19, 2017 common council meeting eliminated any “competitive or bargaining” justification for nondisclosure.7 A strict causation analysis in this
ruling was made. That is, if the ruling happened before the common council meeting, then Friends would succeed on the merits and be entitled to fees (along with costs and any damages) pursuant to
¶29 We do not view the law as compelling such a result. In fact, as these alternative scenarios illustrate, application of a causation analysis in all cases would likely thwart the goal of our public records law: to provide “timely access to the affairs of government,” WTMJ, Inc., 204 Wis. 2d at 457 (citation omitted), “as soon as practicable and without delay,” id. (quoting
¶30 This discussion is not meant to be entirely dismissive of causation, particularly given the significant precedent on which it is based. Rather, we seek to clarify the application of that test where, as here, an authority claims that the expiration of a public record exception, rather than the requester‘s lawsuit, was the reason for what would otherwise be an unreasonable delay in the release of a record. As we did in Racine Education Association and Vaughan, we turn to persuasive federal authority interpreting FOIA. See Racine Educ. Ass‘n, 129 Wis. 2d at 326-28; Vaughan, 143 Wis. 2d at 872-73.8
¶31 We
consider the following factors in determining whether the Church has substantially prevailed: (1) when the documents were released; and (2) what actually triggered the documents’ release to the Church; and (3) whether the Church was entitled to the documents at an earlier time in view of the fact that the exemption [upon which the Postal Service initially relied] was eliminated.
Church of Scientology, 700 F.2d at 491, 492 (emphasis added). The court explained that “[i]f the Church was entitled to a substantial number of the 615 pages of documents that were subsequently released, regardless of the Postal Service‘s eventual decision that the documents were not required for its investigations due to the passage of time, the Church must be considered as having prevailed.” Id. at 492 n.5 (emphasis added).
¶32 Just as Church of Scientology arguably refines the Cox test previously adopted by this court, so too do we rely on that case to clarify our decisions in Racine Education Association, WTMJ, Inc., and other cause-focused cases, and reconcile them with Portage Daily Register and Young. The three-factor test set forth in Church of Scientology allows for a more flexible inquiry, one that permits consideration of factors other than causation.
¶33 The test to some degree requires discretionary determinations by the trial court, and which factor controls necessarily depends on the circumstances. The first factor, the timing of the disclosure, will generally come into play where there is a brief, inconsequential delay in providing records. In such a situation, the fact that a lawsuit may have been filed
necessary to, and does, trigger compliance, that fact alone should usually be sufficient to permit a fee award. The third factor—whether the requester was entitled to the record at an earlier time—should control where a delay in a voluntary release can be attributed to the authority‘s reliance on a public records exception. Where that is the case the trial court must scrutinize the claimed exception, rather than whether the lawsuit caused the release, to determine whether a requesting party has prevailed in whole or in substantial part.10
¶34 Here, there can be no question that the City withheld the draft contract on the claimed basis that a public records exception required nondisclosure; it later released the contract because it believed there was no longer a “competitive or bargaining” rationale to continue withholding it. There also is no doubt that the delay in disclosing this document—in excess of two months, and during a period in which Friends seemingly would be interested in making its views known to the relevant public officials—was not insignificant and the triggering event (according to the City) was the expiration of the exception on which nondisclosure was based. In other words, this unquestionably was not a situation in which an authority was simply dragging its feet, which might allow the court to conclude that a lawsuit was necessary to bring the foot-dragging to an end. Rather, Friends’ claim for attorney‘s fees must hinge on whether the City appropriately invoked
The City‘s Decision to Withhold the Draft Contract was Not Justified By the “Competitive or Bargaining Reasons” Exception in WIS. STAT. § 19.85(1)(e)
¶35 Pursuant to Wisconsin‘s public records law, “any requester has a right to inspect any record.”
¶36 The public record and open meetings statutes do not define the phrase “competitive or bargaining reasons,” and only two Wisconsin cases provide any real guidance.11 Both cases deal specifically
they would stop negotiating with the Town and approach the Village instead.” Id., ¶4. Essentially, the Town sought “to protect its bargaining position with the Sperles.” Id., ¶5. Without any detailed analysis, we assumed that a closed meeting would protect the Town‘s bargaining position and also assumed that protecting the Town‘s bargaining position was sufficient justification for invoking the statutory exception. Id., ¶¶15-19.
¶37 City of Milton presents the only in-depth treatment of this exception, and it is highly instructive. There the City of Milton invoked
¶38 The trial court held that there was no violation of the open meetings law. Id., ¶3. We reversed. Id., ¶19. We examined Milton‘s reasons for closing the meetings, including:
(2) United Coop had proposed constructing an ethanol plant in Milton, and had requested confidentiality throughout the negotiation process; (3) for part of the negotiation process, Milton was also engaged in negotiation for purchase of private property from Doug Goodger which United Coop sought to purchase for the ethanol plant site; (4) Milton wanted its negotiations with United Coop to remain confidential so that another municipality would not pursue negotiations with United Coop; (5) Milton did not want to disclose its negotiating position to United Coop; and
(6) any agreement reached in closed session would have contingencies for public input at a later date.12
Id., ¶11. We found most of these reasons unpersuasive. Regarding the second reason, we held that standing alone, “a private entity‘s desire for confidentiality [throughout the negotiation process] does not permit a closed meeting.” Id., ¶13. Although “such a request might provide a reason for a government to desire holding closed
¶39 The third and fourth reasons for closing the meetings rested on Milton‘s desire to avoid competition on two different fronts: from some other party who might wish to purchase the land on which the plant would be built (reason three) and from another municipality that might wish to lure United Coop and its ethanol plant away (reason four). Id., ¶¶15-17. We held that these were not appropriate justifications under
even if secrecy somehow deterred competition from other municipalities, it is not apparent that such a reason would support holding closed meetings. All Wisconsin municipalities are governed by Wisconsin‘s Open Meetings Law. There is no reason to believe that the free market does not work for ethanol plant siting, resulting in the lowest cost for the ultimate consumers. Permitting the governed to express opinions about prospective purchases may be time consuming, frustrating, counterproductive and might increase costs. But the Wisconsin legislature has decided that complete information regarding the affairs of government is the policy of Wisconsin. We cannot accept the
proposition that a governing body‘s belief that secret meetings will save costs justifies closing the door to public scrutiny.
¶40 In addition, we held that reason six—that the public could weigh in on the agreement at a later date—did not justify a closed meeting:
Milton has cited no authority, nor have we discovered any, allowing an exception to the requirement of open meetings on the basis of the opportunity for future public input. That Milton fears the possible disruption of its plans is no reason to avoid public debate through secret meetings. Indeed, contentious issues are those most in need of public discussion.
Id., ¶18. We did determine, however, that reason five (preventing disclosure of Milton‘s negotiation strategy) could justify invoking this exception and that portions of the meetings that would have revealed that strategy could be closed. Id., ¶19. We reasoned that “[d]eveloping a negotiation strategy or deciding on a price to offer ... is an example of what is contemplated by ‘whenever competitive or bargaining reasons require a closed session.‘” Id.
¶41 At first glance, Herro appears to slightly contradict City of Milton, since the effect of closing the meetings in Herro was to deter a private party from negotiating a better deal with a different governmental entity. Herro, 303 Wis. 2d 749, ¶¶4, 19. In Herro, however, that deterrence was tied to protecting the Town‘s negotiation strategy, by preventing the release of confidential or “inside information” (concessions the Town might make to the Village). Id., ¶4. This is fully in keeping with City of Milton. City of Milton, 300 Wis. 2d 649, ¶¶15-19. Therefore, Herro and City of Milton can be synthesized to create some general principles for the application of
cannot, however, be invoked merely because a private entity desires
¶42 Applying these principles, we conclude that the “competitive or bargaining reasons” exception of
¶43 The City‘s first stated reason for not releasing the draft contract was that it could suffer competitive harm if the document were disclosed. This document, however, was marked up and exchanged among City and Big Top representatives in a succession of back-and-forth edits. To state the obvious, then, any harm from disclosing this document could not relate to the City‘s negotiating strategy with respect to Big Top.
¶44 Nor has the City shown that it would have suffered any other type of competitive harm had it made the contract available to a member of the public in October 2017. Although the City asserts that another “entity” was competing with it, the evidence shows that the only competition was from one or more business groups that may have been working to locate a Northwoods League team in a different municipality. Recall that at one point “a different business group had reached out to the Northwoods League“; however, by “July/August” (months before the public records request) the Northwoods League had decided to partner with Big Top and locate a team in Waukesha. If this “different business group” was the Kelneck group of Lahner‘s deposition (which seems likely), then by the time of the request, no other business group was competing with the City. Even if this “different business group” was not the Kelneck group, there is still no evidence that some other group was competing with the City by October 2017. Thus the City has not shown that it was “competing” with any entity, public or private, for a contract or partnership with Big Top or the Northwoods League as of the October 2017 public records request or during the two months thereafter.
¶45 In any event, under City of Milton, “it is not apparent that” governmental entities can use
¶46 The City‘s second justification—that the draft contract required common council review before release—fares no better. In his deposition Lahner could not clarify how nondisclosure prior to common council review could create any competitive advantage for the City. For example, when asked how public disclosure during the spring and summer of 2017 could have affected the City‘s bargaining position, Lahner replied, “I don‘t know.” Thus, the City has not met its burden of showing
¶47 At least generally speaking, City of Milton further undermines the City‘s second rationale as well. City of Milton prohibits a municipality from invoking
¶48 In making these observations, we emphasize that pursuant to City of Milton and Herro, the City undoubtedly could have relied on
¶49 The City nonetheless maintains that
¶50 Although it is unclear from the meeting minutes, we assume without deciding that those portions of the December 19 meeting concerning the “Common Council‘s reactions” were properly closed—the trial court‘s statement about not wanting to “negotiate a contract in public” is a point well taken. It does not follow, however, that the City was justified in withholding all documents under discussion. The distinction may be a fine one but it is nonetheless important. The need to negotiate, and to form a strategy for negotiating,
¶51 The City has not met this high burden. In fact, it is Friends that has demonstrated that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See
Factors to Be Addressed on Remand in Arriving at an Award of Reasonable Attorney Fees
¶52 Since on remand the trial court should determine the amount of fees permitted, we view it appropriate to provide further guidance on this issue, particularly given some of the unique attributes of this case. Generally speaking, our decision necessitates a remand for a determination of reasonable attorney fees under
¶53 Persuasive authority again aids our analysis. Hardy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 293 F. Supp. 3d 17 (D.D.C. 2017), a recent FOIA case in which a plaintiff partially prevailed, in turn takes guidance from the United States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983), and Fox v. Vice, 563 U.S. 826 (2011) (concerning fee-shifting provisions of the civil rights laws). The Hardy court noted that “[w]hen a plaintiff has achieved only partial or limited success ‘[t]here is no precise rule or formula’ for determining the reasonable amount of attorneys’ fees.” Hardy, 293 F. Supp. 3d at 30, citing Hensley, 461 U.S. at 436. In such cases, a trial court “may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success,” with the goal being to “award only that amount of fees that is reasonable in relation to the results obtained.” Hardy, 293 F. Supp. 3d at 30, citing Hensley, 461 U.S. at 436, 440; see also People for the Ethical Treatment of Animals v. National Insts. of Health, 130 F. Supp. 3d 156, 166 (D.D.C. 2015) (“The degree of plaintiff‘s success is the ‘most critical factor’ in determining the reasonableness of a fee award.” (citation omitted)). The Hardy court further acknowledged that the goal is “to do rough justice, not to achieve auditing perfection.” Hardy, 293 F. Supp. 3d at 30, citing Fox, 563 U.S. at 838. This, in turn, allows trial courts to “take into account their overall sense of a suit, and ... use estimates in calculating and allocating an attorney‘s time.” Id.
¶54 Finally, we note that much, perhaps most, of the fees in this case were incurred after release of the record at issue, meaning in some sense that fees were incurred to recover fees. This includes fees incurred in connection with this appeal. Pursuant to Wisconsin law, as well as FOIA, Friends’ right to fees does not per se preclude the recovery of “fees for fees.” See Chmill v. Friendly Ford-Mercury, 154 Wis. 2d 407, 414-15, 453 N.W.2d 197 (Ct. App. 1990); Hardy, 293 F. Supp. 3d at 32-33. The trial court might consider this circumstance, however, in assessing what portion of fees are recoverable. After all, awards are only for “reasonable attorney fees,”
¶55 We do not mean to suggest that all these considerations necessarily apply but simply note some of the factors that may go into determining a “reasonable” fee award. The parties and the trial court will be in a much better position than this court to advance, weigh, and determine these issues upon remand, and we defer to the trial court‘s sound discretion as to the appropriate mechanism for doing so.
By the Court.—Order reversed and cause remanded with directions.
No. 2019AP96
Notes
Journal Times, 362 Wis. 2d 577, ¶57 (citations omitted). The court went on to discuss whether the requester had “substantially prevailed” in terms of both causation and whether the requester had prevailed in showing a violation. Id., ¶86. (“The lawsuit was not causally related to the release of the record—the record was not in existence when the lawsuit was commenced or even served.“); id., ¶89 (“Precedent instructs us that, as public records litigation is concerned, the Newspaper has not prevailed in substantial part in this action because the Commission acted with reasonable diligence.“).A requester who prevails “in substantial part” in such an action is entitled to “reasonable attorney fees, damages of not less than $100, and other actual costs....”
WIS. STAT. § 19.37(2)(a) . However, “[i]f the failure to timely respond to a request was caused by an unavoidable delay accompanied by due diligence in the administrative processes ... the plaintiff has not substantially prevailed.” Stated differently, if a custodian acts with reasonable diligence, a requester is not entitled to reasonable attorney fees, damages, and other actual costs under§ 19.37(2) on grounds of unlawful delay.