The Journal Times v. City of Racine Board of Police and Fire Commissioners

Lovejoy, and Steve Times Journal Plaintiffs-Appellants-Cross Petitioners,

v. City of Board Racine Police and Fire Defendant-Respondent-Petitioner. Commissioners,

Supreme Court argument No. Oral 2013AP1715. March Decided June

2015 WI 56 (Also 563.) reported in 866 N.W.2d defendants-respondents-petitioners, there For the by Racine, and Lauren Mason, K. Rebecca were briefs University law student. Oral of Wisconsin Devine, L. by argument Rebecca Mason. plaintiffs-appellants-cross-petitioners, For by Dreps, Brown, B. J. Dustin Robert there were briefs argument by Godfrey Kahn, S.C., Madison. Oral & Dustin B. Brown. C. filed Thomas curiae brief was

An amicus Clayton Attorney R General and Bellavia, Assistant Attorney on the General with whom Kawski, Assistant Attorney General, for the Schimel, was Brad D. brief Department of Justice. Wisconsin ZIEGLER, J. This KINGSLAND 1. ANNETTE published of the court of decision is a review of appeals,1 order the circuit court's2 which reversed granting dismissing sum action and the mandamus City mary judgment of Police of Racine Board Commission"). ("the and Fire Commissioners editor, and its Times of Racine 2. The Journal (collectively, Newspaper"), Lovejoy "the com- Steve Stat. action under Wis. menced this mandamus Police & Fire City v. Racine Bd. Journal Times Comm'rs, App 354 Wis. 2d 849 N.W.2d 2014 WI Ptacek, County, pre- P. Racine The Honorable Gerald sided. 19.37(l)(a) (2011-12)3 of Wisconsin's

law4 after the Commission denied the Newspaper's The request. request sought information pertaining special meeting Commission held in closed session on February 20, 2012. The is no Newspaper longer disclosure seeking because the Commission provided requested information and inis compli ance with the The however, Newspaper, seeks to recover reasonable attorney fees, damages, 19.37(2)(a) other actual costs under because, it ar § it gues, prevailed "in whole or in substantial in part" 19.37(2)(a).5 this action. Wis. Stat. § 3. The court of appeals reversed the circuit court's dismissal of the mandamus action. The News- claims that paper the court of appeals erred, however, 3All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. Wisconsin 19.37(l)(a) Stat. provides: (1) authority part Mandamus. If an withholds a record or a delays granting of a part record or access to a record or of a record made, after a requester may written for disclosure is (a) (b).

pursue either, both, pars, or of the alternatives under (a) requester may bring asking The an action for mandamus may a court permit to order release of the record. The court parties attorneys or their to have access to the protective under appro- restrictions or orders as the court deems priate. 4 See Wis. through Stat. 19.31 §§ 19.39. The open law is also known as the records law. We will use the term "public records law" in order to open avoid confusion with the meetings law. 19.37(2)(a) provides, Wisconsin Stat. pertinent part: in attorney fees, [T]he damages court shall award reasonable of not $100, requester

less than and other actual costs to the if the requester prevails part any in in whole or substantial action (1)relating part filed under sub. to access to a record or of a record (l)(a). under s. 19.35 remanding the circuit court for a the matter to attorney fees, reasonable determination of whether damages, actual costs should be awarded. and other argues instead that the award should The parties petitioned of law. Both this made as a matter analysis Newspaper's Our court for review. dispositive presented cross-petition of the issues is parties. both Newspaper cross-petitioned this court 4. The seeking that, to have this court hold as review, may law,

matter of recover reasonable damages, and other actual costs because fees, part." prevailed in "in it this action substantial Newspaper argues denial and that the Commission's timely production equate lack of to violations of public open meetings the records law and law6 such Newspaper prevailed part that the has in substantial as a matter of law. argues Specifically, Newspaper that an the 19.37(2)(a) is due because the

award under Wis. Stat. request misapplied twice denied the Commission req balancing denying public test for argues Newspaper that it filed this lawsuit The uest.7 existed, to obtain a record that it was led to believe but being Newspaper to which access was denied. The also timely respond argues that the Commission did not ultimately request that, the Commission when complaint, filed its answer to the summons and it See Wis. Stat. through 19.98. 19.81 §§ Bay, Hathaway City See Joint Sch. Dist. No. Green v. (1984) 388, 402-03, (discussing 116 Wis. 2d 342 N.W.2d 682 test). balancing revealed, time, for the first that a record did not exist.8 Newspaper argues Newspapers, that, under Inc. v. (1979), Breier, 89 Wis. 2d 279 N.W.2d 179 asserting Commission is barred from that the record Newspaper argues did not exist. The that the Commis sion's defense in the mandamus action is limited to the given in written reasons the denial. argues hand, 6. On the other the Commission prevail part

that the did not in substantial Newspaper, sophisticated requester, because requested information, not a record. The Commission provided states that it information even though required it was not to do so under the argues records law. The Commission that it could not unlawfully have denied the because no record at In short, existed the time of the the Com- argues grants mission records law records, information, access to and that the News- paper prevail did not in its lawsuit because a court require cannot release of a record that does not exist. ¶ 7. We conclude that under case, the facts of this prevail part did not in substantial action and this is therefore not entitled to reasonable damages, fees, and other actual costs under 19.37(2), Wis. Stat. because the Commission did not unlawfully deny delay subject or release of the record. open meetings Whether the Commission violated the "8 written, any drawn, 'Record' means material on which printed, spoken, electromagnetic visual or information is re- preserved, regardless physical corded or of form or character- istics, being kept by authority." which has been created or is an " 19.32(2). includes, to, Wis. Stat. 'Record' but is not limited handwritten, typed printed pages, maps, charts, photo- or films, graphs, recordings, tapes (including tapes), computer disks." Id. computer printouts optical 585 properly before the court because News- law is not request paper a district to commence did § 19.97. Under State ex rel. an action under Wis. Stat. Education, School District Johnson Blum v.Board of of (Ct. App. Creek, 377, 2d 140 209 Wis. N.W.2d 1997), may consider the Commission's defense we responsive at the time of the record did not exist though request the Commission first raised this even defense in the mandamus action. Newspaper words, In other is not en requested request relief because its is not

titled to its by supported the facts of this case or the law. Both parties any misunderstanding, if to there contributed being requested one, of was and the suffi was what any ciency responses. responsive In event, no request the time of the and no record record existed at produced was because of the lawsuit. While a records exacting request precision need not be made with to be request,9 Newspaper deemed a valid experience requester is a and wordsmith with reasonably sophistication. requests Here, the could seeking perceived information, rather than a as record. Although obligation provide under no information in response request, pro to a records the Commission questions vided the with the answers to its subject providing Moreover, information. re quest open meetings cites the law. The Commission initially requests agreed denied the records but later provide, provide, and did information. At the time of the and at the time that provided, information was no record existed that could responsive have been longer production only record;

no seeks it seeks ECO, Elkhorn, City See Inc. v. 302, App 2002 WI 26, 259 Wis. 2d 655 N.W.2d 510. ¶¶ damages, fees, and other actual reasonable 19.37(2)(a). under Wis. Stat. Whether a record costs have in existence at the time of the should been open meetings law, is a matter Certainly records law. public the Commission cannot avoid a request by failing timely a create case, however, the re- record. In this Commission sponded diligence with reasonable released the information while main- legally taining required that it was not to do so and at a time no record existed. the facts nor when Neither support the law the conclusion that part." prevailed in "substantial FACTUALAND PROCEDURAL BACKGROUND I. charged respon- with the 9. The Commission is sibility firefighters, hiring police includ- officers and City police ing and fire the chiefs of of Racine's departments. of five mem- The Commission consists by mayor. budget appointed entire bers who are Its $23,650. in 2012 was only regularly

¶ 10. The Commission holds one meeting every rarely The Commission two months. special meeting. a calls secretary, Rogers Keith 11. The Commission's

("Commissioner responsible Rogers"), primarily for is drafting meeting He the Commission minutes. is private citizen who volunteers his time to serve on the City employed He of Racine Commission. is not police department. employment in addi- or its He has part-time position tion to his volunteer as a commis- sioner. procedure

¶ 12. The Commission has a standard Typically, drafting approving meeting minutes. Rogers during meeting, on Commissioner takes notes meeting template agenda. that outlines the He typically meeting for a drafts minutes within one week meeting. requires However, after that he sometimes meeting more time to draft minutes because of his regular employment commitments. After he drafts usually police minutes, he sends them to the chiefs secretary, Flannery ("Flannery"), Dianne for review. Flannery later the draft distributes minutes to all five typically commissioners. The Commission reviews approval regular meeting, draft minutes for at its next every which is held once other month. The Commission approves special meeting. never minutes at a May City police ¶ 13. In 2011 the of Racine's Twenty-three people ap- chief, Wahlen, Kurt retired. plied open police position. for the chief The Commis- applicants sion determined that 11 met minimum requirements position, for the and it selected seven applicants for interviews. Two of those seven withdrew consideration, their names from so the Commission interviewed the five finalists. By mid-February

¶ 14. 2012 the Commission re- duced the field of candidates to three finalists publicly disclosed their identities. Two of the three Lopez ("Lopez") finalists, Lieutenant Carlos Deputy ("Howell"), Chief Arthel Howell were racial or already employed ethnic minorities and were Department. Friday, February Racine Police On ("Teach- finalist, the third Ronald Teachman man"), withdrew his name from consideration. Teach- already employed by man was not the Racine Police Department. special meeting The Commission called a day held on the next business to address Teach- man's withdrawal. Monday, February

¶ 15. On 20, 2012, the Com- special meeting mission held that in closed session. reopen process the selection The Commission voted Specifically, hiring police chief. it voted to a new original applicants met who which of determine requirements interested in the minimum were still position. inter would consider these The Commission again.10 candidates ested day February 20, 2012, the same as 16. On press meeting,

special issued a re the Commission press release that Teachman with stated lease. position. application police chief It his for the drew "determined that that the Commission further stated pool preferred of candidates it to have broader [Commission] moving has di Therefore, the forward. reengage Springsted11 to with other candidates rected position. applied of Police for the Racine Chief who City Deputy Arthel Howell and Lieu Racine Chief position." Lopez for the remain finalists tenant Carlos identify press commission did not which release reopen the the motion to made and seconded ers hiring police process chief. The a new selection for many press commission also did not state how release against for or commissioners, voted ers, or which motion. Newspaper pub- February

¶ 20, on 17. Also decision to the Commission's lished an article about hiring police process reopen a new the selection for ("Won"), reporter the News- chief. Christine Won paper, the article. authored 10 22, later, February the Commission held days on Two its decision from

special meeting and voted to reverse is, February 22 it February meeting on special —that chief only police Howell for the pursue Lopez and decided position. by the the firm hired Springsted, Incorporated was police finding a new chief. to assist with Commission 18. On Wednesday, February two after days and special meeting press release, Won sent an e-mail to Commission President Charles John- son, Commissioner Rogers, Racine Deputy City Scott Attorney Letteney ("Attorney Letteney"), which stated, in relevant part: Chuck, Keith,

Good morning I my open was told to make directly to the asking you custodians so am as the president secretary respec- commission tively.

I am officially asking on the record to know the vote of each commissioner from the closed [Commis- meeting Monday], February 20, 2012,] sion] in which they reopen police decided to chief search. you

If deny, please provide choose to a written explanation. 19. A few hours after sending e-mail, Won

sent a clarification e-mail to the same three recipients, which stated:

Chuck, Keith, — 19.88(3)

Under statute asking I am for the recorded motions and votes of each PFC Commissioner at meeting closed Monday], 20], on February including who made the motion and who seconded it.

I appreciate would this information as soon as practicable delay. and you without If deny choose to request, please this provide a explanation. written 20. It is undisputed that no record containing the requested information existed at the time of the requests. Commissioner Rogers, who would ordinarily

590 notes of the on a taking meeting for responsible 20 February special did not attend the template, remotely via appeared telephone. but instead meeting with him and note-taking template not have his He did normally as he meeting did not take notes minutes of the he did not draft Accordingly, would.12 minutes, taken notes and drafted Had he meeting. of business would in its normal course Commission at its approval the draft minutes have circulated bi-monthly meeting.13 next 7, 2012, Attorney 21. On March Wednesday,

f Won's requests: denied Letteney responded of, of, [Commis- at the direction On behalf sion]: specific [Com- for the vote of the

1. Your member, mission], by in closed session on Feb- taken 12 explain where Commis- The circuit court record does interrogatory ques- during meeting. An Rogers was sioner why he did not take notes on this the Commission tion asked ap- Rogers meeting. The answer stated that "Commissioner meeting telephone. He subject February 20 via peared at the him at 'minute-taking template' with copy have a of his did not Rogers has We note that Commissioner his remote location." position on part-time to his volunteer employment addition February special 20 We also note that this the Commission. meeting was called on short notice. 13 business, ordinary it course of Under the Commission's February special 20 minutes for the would not have reviewed meeting, which was held on regular next meeting until its 19, fact, agenda March 19 Monday, In for the March public on apparently released to the meeting, which was planned approve the March stated that Commission However, February special meeting. for the draft minutes February meeting were created minutes for the no draft Thus, February 20 minutes meeting. prior to the March 19 regular meeting, on next approved were at the Commission's May

ruary 20, 2012 is denied. The basis for this denial is State ex rel. Cities Service Oil Appeals, Co. v. Board of (1963). 516[,] 21 case, Wis. 2d 124 N.W.2d 809 In that regarding voting sessions, in closed the Wisconsin Supreme held, page Court at "voting is an integral part deliberating of merely formalizes the result deliberating process." reached The Newspaper then asked the Commission to recon sider its decision denying request.14 22. On March Friday, 9, 2012, in another e-mail from Attorney Won, Letteney the Commis- sion again denied the Newspaper's time, This the Commission's stated response its denial was based on concerns for the of at safety least one com- missioner due to the controversy surrounding Commission's decision to reopen selection process hiring police new chief. This e-mail stated: City/[Commission] strong, has a good faith

basis, founded in denying the law for the release of the vote of the February 20, [Commission] from its meeting. addition, In upon performing required balancing records, test for the release of there is are significant [sic] public policy bases for denial of the records. (A) (Some) commissioner(s) expressed have rea- (his)(her)(their)

sonable concerns for personal wellbe- ing if specifics of the vote are released. 23. The Commission, however, indicated a will-

ingness to release the "specifics the vote" within five business days a new hiring police chief because the 14 The circuit court record contains an affidavit Steve Lovejoy,which states that he directed Won request that Commission However, reconsider its March response. contents of this are not in the circuit court record. "this Newspaper desire to have clear its had made particular, 9 e-mail contin- information." the March In ued: aware, a there has been you are

Additionally, as per- inaccurate race and an focus on disproportionate in the some role played has discrimination ception that process. chief selection decision-making police in the the selection cloud over an unfortunate This has been process. such affected perceptibly has process and this time of the vote at specifics of the The release this, Despite these issues. certainly exacerbate will [Newspaper] of import the clear the to you have made a Therefore, we will offer information. having this February will 20 vote specifics of the compromise. The days after a you within five business released to [Commission], hired the chief has been police new Newspa- Monday, 2012, the ¶ 12, March 24. On "im- per be released the "information" that public mediately" how the "know the should because Letteney Attorney wrote to was made. Won decision" compromise and in a not interested "Weare via e-mail: immediately. I can under- like information would public per- Commission's] [the about concerns stand public's interest to ception it is we believe but reopen made." was the search decision to know how the you our to reconsider "We ask e-mail concluded: The request Commission's] [the final know let us response." Thursday, days 15, March

¶ later, on Three 25. copy Letteney Attorney e-mailed to alleging complaint unfiled, summons draft, law. The violated the Commission Newspaper stipulate ac- the Commission asked Newspa- Letteney Attorney cept informed service. per the Commission could accept not service and that service be made on the clerk. city should 16, 26. day, The next March Friday,

¶ News paper filed this action court against Commission 19.37(1) under Wis. Stat. records law. The Attorney General or a did file district an action under the law.15 open meetings 2012, Tuesday, On March Commis- sion voted to hire Chief unanimously Howell as Deputy Racine's new chief. police days later, Thursday, Two on March Letteney sent an

Attorney e-mail that a provided, record, but the information it had requested. The e-mail stated: February meeting

At [Commis- the of the sion], the was to reopen police motion the search a for only to the extent to whether determine the other chief applied candidates who the Racine Police Chief of position qualifications, and who met the minimum but interview, initially were not asked to were still inter- ested in position. import the The of the discussion leading part to the motion was a on the desire of the to compare Commissioners external candidates to in- candidates, ternal inasmuch as the first interview did [Commission], not include all members of the Commis- Wanggaard sioner Van made the motion. It was sec- onded Commissioner Marie Black. Commissioners Johnson, Black, Charles Wanggaard and voted in the Rogers affirmative. Commissioners Keith and Melvin Hargrove in the negative. voted 15Before an filing open meetings law, action under the private request citizen first must a district to file an (4). action 19.97(1), on behalf of the State. See Wis. § Stat. The follow procedure. did not this February vote, however, 20 motion Minutes approved.16 or not drafted still were the Commis- did not serve The April was 11, 2012, which lawsuit until this sion with requested information. days it received after alleged complaint "violated the Commission The 19.88(2) by § [Public] and Wis. Stat. Law Records Specifically, request." Newspaper's denying the rea- alleged complaint stated that the Commission's legally Newspaper's denying were sons for complaint insufficient. under against the defendant judgment

demanded] 19.37(1): Wis. Stat. provide the News- Compelling the defendant

A. record; copy paper reasonable attor- their Awarding plaintiffs B. Wis. Stat. damages under fees, neys' actual costs 19.37(2)[;] and deems the Court relief as Awarding such other C. just. May filed an 2012, the Commission On complaint. Newspaper's In its answer

answer argued action mandamus the Commission "provided the Commission was "moot" because Newspaper] [the within information to request." Com- One the time after reasonable the mandamus was that defenses affirmative mission's brought properly the Wisconsin under "not action was 16 the March before not drafted minutes were Because the shortly before they drafted meeting, were 19, regular 2012 note meeting. supra See 22, regular May 2012 approved at the

595 Law, Records 'record,' Public because a as defined 19.32(2), containing Stats., Wis. the information sought has never existed."

¶ 31. At the time that the Commission filed its Newspaper's complaint, to the answer no record was yet in existence. The Commission had not drafted February special prior meeting minutes for the 20 to regular meeting its on March 19 but it had drafted regular meeting May minutes before next its on Specifically, May Attorney 21, on or about 2012, Letteney proposed language February sent 20 meeting police secretary, minutes to chiefs Dianne Flannery. Attorney Letteney However, did draft any May Flannery Instead, minutes. on drafted February meeting. minutes for the 20 Flannery's After Commis- Rogers approved sioner minutes, draft Flannery sent the draft minutes the five commis- sioners via e-mail. She did not send the draft minutes Attorney Letteney. day, May The next 22, the Com- approved regular, mission at minutes its bi- monthly meeting. September Newspaper 32. On 2012, 13, summary judgment

filed a motion for in the lawsuit. In supporting Newspaper a brief motion, clarified seeking specifically, that it was disclosure of a record— meeting argued Newspaper "[al- minutes. The that, though question accuracy does not provided by Letteney, of the information Mr. his e-mail satisfy does not its . . . The [Commission] provided has never February meeting." the minutes of its 3, On October opposing 2012, the Commission filed a brief the News- paper's summary judgment. motion for

¶ 33. On October circuit held court hearing Newspaper's summary on the motion for judgment. hearing, Attorney Letteney, At the unaware that draft minutes were circulated to the Commission May 21, on stated that he has "never for seen minutes February meeting." [the 2012] 20, He "I stated, further anticipate days don't think it's reasonable to that two meeting newspaper reporter after a a that under process being taken, stands the of minutes minutes being posted, being approved actually minutes should actually days believe that meeting exists two after a [Newspaper] . . . ." He concluded that "if the give motion, wins this there no record is still them." The circuit court denied the motion. The court stated that it was "not satisfied on this record the Court can prima find that there has facie been case made out that there are documents that exist here." "There's no asserting fact that minutes —draft minutes were cre minutes created, ated or that themselves were grant summary judgment thus, to motion would yield potentially an order of the Court that would produce nothing meaningful and have no effect." The proceed discovery.17 court allowed the case to for more Letteney Attorney 3, 2012, 34. On December Newspaper's sent a letter to the circuit court and to the Attorney Letteney counsel. The letter reiterated that any previously was "unaware of the existence of min- February meeting." [the 2012] However, he utes for hearing explained that sometime after the October 25 police secretary, May 21, he learned that the chiefs on February meeting circulated draft minutes for the explained The letter further commissioners. Attorney Letteney "provided copy [a] draft such Newspaper's February [the counsel]." minutes to 9, 2013, January Rogers On answered Commissioner interrogatories Newspaper. previ- He submitted was ously deposed on June meeting Newspaper's minutes that were sent to the

counsel were almost with the information verbatim the Commission e-mailed to the on emphasized March 22.18 The letter that "the draft February 22, 2012, minutes did not exist on the date at issue was made." The emphasized approved letter further that the minutes February special meeting yet for the 20 City had not been published on the of Racine's Web site.19

¶ 35. On March 22, 2013, the Commission filed a summary judgment. days motion Newspaper later, Three summary judg-

filed a renewed motion for ment. April 22, 2013, 36. On the circuit court held a

hearing on those two motions. The circuit court found responsive that no Newspaper's request. record existed at the time of the particular,

In it found that "it's disputed guess I that at the time the demand was any recording supplied made there wasn't written to be City pursuant [sic] request." Further, to their February ap- "the minutes of 20th. . . were never proved May until the Commission's 22nd meet- ing ----"

¶ 37. The circuit court also found that "it's clear City exactly hadn't or didn't know what had 18The minutes read: Reopening the Police Chief recruitment to the extent of those applicants qualified, previously granted who were but not inter- views, approved by Wanggaard on a motion Commissioner by two, seconded Commissioner Black. Motion carried three to Johnson, Wanggaard, voting

with Commissioners and Black affirmative, Hargrove Rogers voting and Commissioners negative. in the 19The circuit court record does not indicate when the February published city's were minutes on the Web site. [February meeting 2012] happened with at the respect minutes . . . The court found that: part I think the issue on the

[I]n this case knowledge [Newspaper] is created the lack of on the governmental entity exactly to know what part of the meeting was in a committee that was happening way hiring police and the it did discuss the of chief records, why keep did not its and that's this case or process had to lead to a to discover its instance It whether there was a record that existed or not. known.... wasn't hearing, At end of the the circuit court summary judg Newspaper's for

denied the motion granted summary ment, the Commission's motion for judgment, and the action.20 After an in- dismissed depth Zinngrabe discussion of State ex rel. v. School Sevastopol, 629, 2d District 146 Wis. 431 N.W.2d 734 of (Ct. 1988), Zinngrabe App. the circuit court stated that controlling point here." The circuit court "is and on Zinngrabe, concluded, that it was "not satis based on pleadings were couched in terms of fied that the which [public] us to reach the issue records law allow meetings open about. . . the law." May appeals ¶ 2014, the 28, 39. On court of [ed] the circuit court's order and "remand reversed solely of whether the is for a determination attorney fees and costs." Journal Times v. entitled to City Comm'rs, 2014 Racine Bd. Police & Fire WI of App ¶ 67, 2, 591, 354 Wis. 2d 849 N.W.2d 888. although Newspaper's appeals that, held "the court of when the Commission became moot provided information," the action should not

20 2, 2013, written order May On the circuit court entered a to that effect. "[t]he Newspaper has a

dismissed still viable because attorney litigation fees and costs if the 'was a claim for March 22 cause, not the cause' of the Commission's (citation omitted). ¶ Id., The court of release." appeals estopped held "that the Commission is from arguing Id., that a record of the vote did not exist."21 17, filed a 2014, 40. On June asserting reconsideration, for that it was en- motion damages, fees, titled to reasonable other "prevailed" it actual costs as a matter of law because part" "in substantial the mandamus action. On June appeals 2014, 20, the court of denied motion for reconsideration. July 21, 2014, 41. On the Commission filed a August

petition Newspa- 20, 2014, for review. On per cross-petition filed a for review. On November granted petition cross-petition we review.

II. STANDARD OF REVIEW "Interpretation pres ¶ 42. of our own case law question ents a law that we review de novo." State v. ¶ Walker, WI 34, 13, 666, 2008 2d 308 Wis. 747 N.W.2d (citation omitted). independently 673 "We review correctly granted summary whether the circuit court 21 brief, response In its states that it "agrees appeals [Commission] with the that the court of should applied equitable estoppel not have here." The Breier, argues rely that Newspapers, we should on Inc. v. 89 417, (1979), 2d equitable Wis. 279 N.W.2d 179 instead of estoppel, raising bar Commission from its defense that Thus, no equitable estoppel. record existed. we do not address

600 judgment" to the Commission. Stoker v. Milwaukee Cnty., ¶ 130, 16, 347, 2014 WI 359 Wis. 2d 857 N.W.2d (citation omitted). "Summary judgment 102 'shall be pleadings, depositions, rendered if the answers to interrogatories, together file, and admissions on with any, genuine affidavits, if show that there is no any moving party issue as material fact and that the judgment is entitled to a as a matter of law.'" Id. " 802.08(2)). (quoting 'Statutory interpre Wis. Stat. application present questions tation and of law that we benefiting analyses review de novo while from the appeals the court of and circuit court.'" 118th St. ¶ Kenosha, DOT, 125, LLC v. 19, WI 359 Wis. 2d (quoting 30, St., 856 N.W.2d 486 260 N. 12th LLC v. DOT, 103, 39, 34, 2011 WI 2dWis. 808 N.W.2d 372). "[Statutory interpretation 'begins

¶ 43. with the language meaning of the statute. If the of the statute is plain, ordinarily stop inquiry.'" we State ex rel. Cnty., Kalal v. Circuit Court Dane 2004 WI (quoted ¶ 45, 271 Wis. 2d 681 N.W.2d 110 source omitted). "Statutory language given and citations is its ordinary, accepted meaning, except common, specially-defined phrases technical or words or are given special meaning." their technical or definitional (citations omitted). Id.

III. ANALYSIS recognize outset, 44. At the we News- paper's brought action was under the open meetings Thus, law rather than the law. we do practices not determine whether the Commission's comport open meetings analysis with the law. In our prevailed in this

we focus on whether part, entitling it reasonable action substantial damages, attorney fees, and other actual costs under 19.37(2)(a) public records law. In Stat. of Wis. concerning general principles doing first discuss so, we public governmental Second, access to records. we analyze parties' arguments. Third, outline the we raising is barred from its whether the Commission responsive affirmative defense that no record existed Newspaper's requests. Fourth, we at the time of the Newspaper's requests review the and the Commis- Finally, precedent responses. evaluate sion's we determine whether the Commission exercised reason- diligence responding requests. Ulti- able mately, Newspaper's requested we conclude that the supported relief is neither the facts of this case nor by legal precedent.

A. Public Access public open meetings ¶ 45. The records law and concepts history law are fundamental in our state's transparent government. See State ex rel. Auchinleck of LaGrange, 585, 2d 597, v. Town 200 Wis. 547 N.W.2d (1996); Rapids Dist., Schill v. Wisconsin Sch. ¶¶ 86, 1-3, 572, 2d WI 327 Wis. 786 N.W.2d 177. promote public These laws were enacted to access to governmental Hegerty, actions of bodies. See Watton v. ¶¶ 9-10, 2008 WI 311 Wis. 2d 751 N.W.2d 369. Wisconsin's records law states that "it is de policy clared to this state all greatest persons possible are entitled to the informa regarding government tion the affairs of and the offi employees represent cial acts of those officers and who clearly "[T]he general stated, them." Wis. Stat. 19.31. presumption public of our law is that all records shall open public." Linzmeyer Forcey, v. WI 84, (citation ¶ 15, 254 Wis. 2d 646 N.W.2d 811 omit ted). presumption principle "This reflects the basic people workings that the must be informed about the government openness government of their and that in strength is essential to maintain the of our democratic (citation omitted). society." Similarly, Id. Wisconsin's open meetings law states "it is declared to be the policy public of this state that the is entitled to the complete regarding fullest and most information government compatible affairs of as is with the con 19.81(1). governmental § duct of business." Wis. Stat. Despite purposes, public their similar open meetings records law and law have differences legislature and are not without limits. The enacted different avenues of enforcement for these two laws. public plain language records law's allows an individual request to initiate a lawsuit to enforce a records similarly

but the statute does not authorize an open individual to initiate a lawsuit to enforce the meetings Specifically, public pro- law. records law authority "[i]f that, vides an withholds a record or a part delays granting of a record or access to a record or part of a record after a written for disclosure is "[t]he requester may bring made," an man- action for asking damus a court to order release of the record." 19.37(l)(a). § Wis. Stat. By open meetings

¶ contrast, the law "shall by be enforced in the name and on behalf of the state attorney general upon complaint or, the verified any person, attorney any county the district 19.97(1). may § wherein a violation occur." Wis. Stat. "If the district refuses or otherwise fails to subchapter commence an action to enforce this within person days receiving complaint, the after a verified making complaint may bring an action under such (1) (3) in name, on his or her relation subs. 19.97(4). behalf, Stat. on of the state." Wis. open meetings ¶ 48. The records laws become somewhat intertwined this case because the Newspaper argues, part, that the records law violated because the Commission violated the was argues open meetings that "Wis. law. The 19.88(3) open meetings required [of law] Stat. [Commission] to record and disclose the information 19.88(3) Newspaper requested." Section states meeting "[t]he motions and roll call votes of each of a governmental body preserved recorded, shall be open public inspection prescribed to to the extent 19.88(3). Subchapter § II of ch. 19." Stat. II subch. Wis. public Newspaper urges includes the records law. The legislature this court to "hold that intended the 19.88(3) by imposed § duties to be enforced under the [Public] Records Law." relying Zinngrabe,

¶ 49. The Commission, on argues 146 Wis. 2d that we cannot consider complied open meetings it law, whether with the public because this lawsuit was filed under the records argues Further, law. that it Commission did not open meetings argues violate the It that it law. was not 19.88(3) required open § under Wis. Stat. meet- ings law to create a record of the commissioners' February special individual votes at 2012 19.88(3) meeting. § The Commission reasons that re- quires recorded, "roll call votes" to be but the Commis- votes, sion used voice call votes, not roll at the Febru- ary special meeting. argues The Commission also 19.88(3) required that it was not under to record the 19.88(3) meeting. required motion at that Even if to Commission record the motion and individual com- February special meeting, at the missioners' votes argues, [statute] the Commission "this does obli- gate body public 'immediately' to make a record of any such or motions votes." Zinngrabe. Zinngrabe turn 50. We to Donald Sevastopol

filed a records with the seeking inspect School District minutes from several meetings. Zinngrabe, school closed board 146 Wis. 2d being at 630-31. After told that the records seeking exist, did not he filed a mandamus action, "a punitive damages, mandamus, writ of and other costs [public] under the law. . records . ." Id. at 630. He argued he could seek relief under the maintain records law for the school failure board's meetings allegedly required by records of its closed as 120.11(1) 120.17(3) (1985-86). §§ Wis. Stat. Id. at appeals rejected argument, 634. The court of explaining that:

Zinngrabe essentially argues that is at- board tempting provisions to defeat of the [public] re- by keeping cords law not that it records is directed relief, Zinngrabe's statute to maintain. claim for how- ever, alleged assumes that to keep board's failure [public] minutes can be attacked under the disagree and, law. accordingly, We with premise this need not address the issue whether and to what by extent minutes must be maintained the school board clerk.

Id. at 634-35. Zinngrabe,

¶ Newspaper 51. Consistent with the public cannot relief seek under the records law the alleged meetings open Commission's of the violation undisputed Newspaper It law. is filed this

605 public did records law and not follow action under open procedures pursue under the to an action the meetings not whether an Thus, law. we do address meetings public open In law occurred. this violation Newspaper action, cannot mandamus records law damages, and other fees, recover reasonable 19.37(2) alleged § for an actual costs under Wis. Stat. meetings open 634-35; id. at law. See violation of (Even ¶ Kenosha, LLC, 33 if 30, 359 2d 118th St. Wis. particular "damages compensable are under a stat- . . . damages ute, a claim those cannot recovered statute."). brought wrong under the contrary arguments Newspaper's The do persuade us not to hold otherwise. open meetings

contends that the law's "enforcement legislature's provisions de- are ill-suited serve timely gov- purpose clared access to ensure legislature However, the ernment affairs." significant mandated between the two laws' enforce- differences provisions. Auchinleck, ment 200 Wis. 2d at See change 592-93. If the seeks the statu- tory provisions, it must direct those concerns to legislature. "[A]ddressing legisla- those is concerns properly function, tive function undertaken City v. courts." Milwaukee Journal Sentinel Milwaukee, 607, Wis. 2d 815 WI (Roggensack, concurring majority J., for a N.W.2d 367 court). disagree Newspaper's We also with 19.88(3). argument implicitly . . in- that "Wis. Stat. corporates [the law's] mea- enforcement effectively otherwise, sures." Were we to hold we would nullify provisions legislature the enforcement that the meetings open included in the law. See Wis. Stat. Auchinleck, 2d 19.97; 200 Wis. at 592-93. Newspaper B. Did the Prevail in Substantial Part? ¶ 53. The crux of the issue before the court is Newspaper prevailed whether the part in substantial attorney- this action so to entitle it to reasonable damages, fees, and other actual costs under Wis. Stat. 19.37(2)(a). ¶ 54. We conclude that under the facts of this Newspaper prevail case, the part did not in substantial in this action and is therefore not entitled to reason damages, able fees, and other actual costs 19.37(2), under Wis. Stat. because the Commission unlawfully deny delay did not subject or release of the record. In other words, the is not entitled request to sup its relief because its is not ported by parties the facts of this case or the law. Both misunderstanding, contributed any, to the if there was being requested of what sufficiency was and the responses. any responsive In event, no record existed request at the produced time of the and no record was request because of the lawsuit. While a records need exacting precision not be made with to be deemed a request,22 valid ais requester experience sophis and wordsmith with requests reasonably tication. per Here, could seeking ceived as information, rather than a record. request open meetings Moreover, cites the law. The initially requests Commission denied the but later agreed provide, provide, responsive and did infor mation. At the time of the and at the time that provided, the information was no record existed that responsive could have been The Com required provide mission was not information in ECO, Inc., See 259 Wis. 2d ¶¶ response The no to a records only production longer record; it of a seeks seeks attorney damages, other actual fees, and reasonable 19.37(2)(a). § Whether a record should costs under request a at the time of the is have in existence been open meetings public law, not records matter Certainly public cannot avoid a law. Commission by failing timely In to create record. responded to the case, however, this Newspaper the Commission diligence with reasonable released maintaining requested that it was information while required legally a time no to do so and at when discussed, As neither the facts record existed. will be support nor prevailed the conclusion that the law part."23 in "substantial Records Law Public public designed The records law "is to existing make records available to the unless withholding specifically such documents is authorized App Connors, ex v. 2007 WI law." State rel. Gehl (empha- 247, 742 530 13, 306 Wis. 2d N.W.2d 633). added) (citing Zinngrabe, Wis. 2d sis 146 at require does not However, "the records law 23 review, Newspaper cross-petitioned this court for recovery test of seeking to have us create a new for reasonable fees, damages, other costs under Stat. actual Wis. 19.37(2). argues It Court hold when a "[t]his should denial, stated for it has no custodian abandons its reasons necessarily prevailed has 'in requester defense at all and the 19.37(2)." part1 Wis. Stat. We substantial under decline adopt we proposed present explain, this test in the case. As will denying Newspa- the Commission has a valid defense for containing per's request: no record information existed. authority provide requested

an information if simply questions exists, no record or to answer about topic requester." Dep't interest Wis. Compli Justice, Law, Wisconsin Public Records 2012), (Sept. Outline, ance at available http://www.doj.state.wi.us/sites/default/files/dls/ at public-records-compliance-outline-2012.pdf.24 See al Zinngrabe, George so 2d at 635; Wis. v. Record (Ct. Custodian, 2d 573, 579, 169 Wis. 485 N.W.2d 460 1992) ("The App. [public] require records law does not the custodian create to . . . a record benefit of a requester."). always While a record will contain infor may always mation, information not in the form of a record. authority,

¶ upon request any 56. "Each for re- practicable delay, cord, shall, as soon as and without request notify requester fill either authority's or of the deny request determination to in whole part or in and the reasons therefor." Wis. Stat. 19.35(4)(a). purposes § production public "For of the of 19.35(4)(a), statutory § records under Wis. Stat. language practicable' implies 'as soon as a reasonable response Hegerty, App time for ." . . . Watton v. 2007 WI ¶ 36, 267, 542, 619, 306 Wis. 2d 744 N.W.2d rev'd on grounds, 74, 52, other 2008 WI 311 2d 751 Wis. N.W.2d Sentinel, See also Journal 341 Milwaukee Wis. 2d 19.35(4)(a) ¶ (explaining 607, § 56 & n.31 allows response). "[W]hat a a reasonable time for constitutes by response authority a reasonable a time for an depends request, on the of the nature the staff and

24See also ("Any person may request Wis. Stat. 19.39 § general advice from the attorney applicability as to the of this subchapter any attorney general under circumstances. The may respond request."). to such a authority process other resources available request, request, other extent WIREdata, Inc. v. Vill. Sus- related considerations." sex, 56, 310 2d 751 N.W.2d 2008 WI Wis. (internal omitted). "Accordingly, quotation marks acting authority dili- is with reasonable whether an totality depend upon gence particular case will in a surrounding particular re- of the circumstances quest." Id. provides requester records law ability request in a

with the enforce 19.37(1). requester A mandamus action. Wis. Stat. prevails part" "in in such an action is who substantial damages fees, of not entitled to "reasonable . . ." $100, less than and other actual costs . Wis. Stat. 19.37(2)(a). timely "[i]f re However, the failure to by delay spond to a was caused an unavoidable accompanied diligence due in the administrative substantially pre processes,. plaintiff has . . the v. Educ. Racine vailed." Racine Educ. Ass'n Bd. of for Dist., 518, 524, 2d Sch. 145 Wis. 427 N.W.2d Unified (Ct. II") 1988) ("Racine (citing App. Educ. Ass'n Racine Educ. Ass'n v. Bd. Educ. Racine Unified (Ct. Dist., 319, 327, Sch. 385 N.W.2d 510 Wis. 2d 1986) ("Racine I”)). App. differently, Ass 'n Educ. Stated diligence, if a a re custodian acts with reasonable attorney quester fees, is not entitled to reasonable 19.37(2) damages, § and other actual costs under on grounds delay. See of unlawful id. at 524-25. Arguments

2. The Parties' argues Newspaper The that it this filed it was led lawsuit to obtain a to believe being to access denied. The existed, but which was Newspaper Breier, asserts that under 89 Wis. 2d defending the Commission is limited to on reasons gave denying precluded it for and access is from explaining Newspaper that no record existed. The argues longer that because the Commission no relies originally provided denying on the it reasons that for Newspaper's request, attorney reasonable fees, damages, and other actual costs must be awarded as matter of law. Newspaper argues pre 59. The further that it part

vailed substantial because the Commission did respond provide requested not information "as practicable delay," required by soon as and without as 19.35(4)(a).25 Newspaper Wis. Stat. The is not still seeking Newspaper's argument Instead, record. timing response, contending on focuses "[t]he response, [Commission's] coming nearly initial hardly request, two weeks after the was 'as soon as practicable Similarly, delay.'" and without the News paper it contends that "was entitled to information Newspaper production, when the first its actually [Commission] a month later when the dis it." closed accuses the Commission "strategi "deliberate failure to create the record" and cally delaying purpose,... an disclosure" "for illicit to public accountability shield officials from urges their official actions." The this court delay, damages it "hold is entitled to recover for that along costs, with fees reasonable under 19.37(2)." Wis. Stat. 25Relying attorney general opinion, on an the Newspaper argues delay" illegal that a "24—hour is under (1978) See 67 Wis. Att'y law. Op. Gen. 119-20 (OAG 24-78) ("I any am not aware sufficient reason justify delay."). a 24-hour argues hand, the the Commission 60. On other prevail part Newspaper in substantial

that did not the reasonably. Foremost, the acted because Commission required argues it that could not be the Commission produce not at the time of the a record that did exist May request. until end of No record existed the earlier, in The was filed about two months lawsuit argues may The that March 2012. Commission we no record re- consider its affirmative defense—that sponsive Newspaper's request the to the existed at defense is on a time of the this based —because statutory exception public to the records law. Accord- ing appeals Blum, Commission, to the the court of prevent 2d that Breier does not Wis. clarified considering requested a statutorily whether a record is court from exempt under from disclosure statutory exemption law, even not records if was response in a to a mentioned custodian's argues The even Commission further that though required record and it was not no existed provide reasonably provided information, it acted Newspaper. the information The argues reasonably that it that Commission believed requesting a information, was not actively it record, and that did not mislead the News- paper believing into that a record existed. The Com- emphasizes Newspaper's requests that mission ambiguous were and that could reasonably thought meeting have minutes existed only days meeting after two at issue. Commis- argues responded requests sion also that it argues timely "[n] information in manner. It ei- Open Meetings ther Law the Public Records nor requires Law it to earlier than it create would regular purpose in the course of its business for the responding [public] request." to a The Commis- argues requirement sion that "there is no in the law immediately." [Commission] that the create the record According Newspaper's Commission, accu- deliberately sation that the Commission failed to cre- [its members] ate a "to shield from accountabil- ity "preposterous." for their official is actions" The argues approved Commission that it created and meeting according regular minutes at issue to its slightly course of business and that "clerical error" delayed argues their creation. The Commission that "[t]hese support facts do not conclusion [Commission] covering up was its 'failure' to create these minutes earlier."

3. Breier and Blum Newspaper argues ¶ 62. The that Breier bars the raising responsive from Commission a defense that no Newspaper's request. record existed at the time of argues may that, The Blum, Commission under it although assert that defense it did not raise that defense before the filed the mandamus action.

¶ 63. In Breier The Milwaukee Journal re- quested Department the Milwaukee Police dis- daily including charges upon close records, arrest persons Breier, which were arrested. 2d at Wis. police department 420-21. The refused to disclose charges, records of the brought The so Milwaukee Journal seeking compel- a mandamus action an order ling disclosure of those Id. at records. 421-22. The Breier stated: court duty specify

The of the custodian is reasons for and the role nondisclosure court's is to decide whether the trial are sufficient. It is not the reasons asserted hypothesize reasons or to or this role to court's court's allowing inspection which for not consider reasons not asserted the custodian. were Id. issue, at in Breier the 64. Unlike the case time at the records existed department police records re- denied the protect public policy

quest reasons order to "possible personal from and eco- arrested individuals Id. court "as a matter of harm." at 421. This held nomic public in the form that the harm to the interest of law damage persons' reputations possible does to arrested allowing inspection outweigh public the interest in not charges upon police show records which Accordingly, Id. at arrests were made." this which a writ court remanded for the circuit court to issue requested compelling mandamus disclosure of the re- present case, In the the circuit court could cords. Id. ordered relief at the time the lawsuit not have that was then, and in commenced because no record existed ordinary course of a record Commission's business regular meeting not have until the next would existed in late March. prohibit Thus, Breier will sometimes a considering denying public reasons a

court from request by a records that were asserted custodian prior of a action. commencement mandamus See Library Bd., Co. Oshkosh Nw. v. Oshkosh 125 Wis. 2d (Ct. 1985) ("Where App. 480, 484, 373 N.W.2d 459 inspection denied, custodian, is it is the not the attor- body ney representing governmental a after man- give specific commenced, is who damus action must denying inspection."). and sufficient reasons for But always require prohibition, espe- Breier does not cially if no record exists.

¶ 66. In Blum a student, Blum, Elizabeth filed a public request records with the Johnson Creek Board Blum, of Education. sought 209 Wis. 2d at 379. The indicating grades the interim of a scholarship student who received a over Blum. Id. The request, stating calculating board denied the grades interim would be burdensome and that interim grades determining recipient were immaterial for scholarship. Id. at 380. Blum then filed a compel mandamus action to the board to disclose the requested records. Id. appeals

¶ 67. The court of affirmed the circuit denying petition. court's order Blum's mandamus Id. appeals at 391-92. The court of held that Wis. pupil Stat. 118.125, which states that records main- exempted tained confidential, school are records from disclosure under the (1) "[U]nless records law. Id. at 385. there exists: (2) statutory exception'; 'clear a common law limita- (3) overriding public keeping tion; or an interest in sought record confidential, the information must be (quoting Hathaway disclosed." Id. at 383 v. Joint Sch. City Bay, Dist. No. Green 388, 397, Wis. 2d (1984)). appeals N.W.2d 682 The court of concluded statutory exception that 118.125 was a clear to dis- closure. Id. at 385.

¶ appeals rejected argu- 68. The court of Blum's rely ment that, because the board did not on Wis. Stat. response public request, § 118.125 in its to her records considering Breier forbade the court from whether that exempted requested statute records from disclo- sure. Id. at 391-92. Because the board relied on petition, response mandamus to the in its 118.125 'hypothesize' required

"[t]he was not trial court thus statutory exception," have applicable which would n.6. The prohibited See id. at 388 under Breier. been appeals insufficient concluded, "the Board's court of prevent court from a Blum does not letter to denial determining exception' ap- statutory a 'clear whether grades." at 388. plies Id. interim prohibit Blum, ¶ Breier does not Thus, under considering requested record is whether a court from statutorily exempt public under the

from disclosure not assert if a custodian did law, even statutory exemption prior of a to the commencement action. mandamus rely urges Newspaper on this court to The prevailed in substantial that it has

Breier and conclude requires argues Newspaper part. that Breier The response public specific to a in its custodian to be challenge requester can that a records response so sufficiency can review and so a court response. the Com- contends that The believing newspaper "actively into misled mission issue," at of the motion it had created a record only the manda- record existed after to assert that no argues that, had action was filed. mus filed suit existed, it would have it known that no record public meetings open law instead under the records law. rely urges on Blum us to 71. The Commission affirmative defense allow it to raise its

and thus responsive the time of the News- record existed at no argues paper's request. record's non-existence It that a statutory exception provides un- to disclosure a clear reasons The Commission records law. der require the cre- does not records law that the ation of a record or the release of a record that does not argues exist. Commission further that "there is no [Commission] purposefully evidence . . . that or maliciously Newspaper" believing misled the into that argues a record existed. Rather, the Commission mistakenly it believed that was re- questing information, records, not and that the "lack of clarity" Newspaper's requests "resulted in con- fusion." may 72. Todetermine whether the Commission responsive

assert its affirmative defense that no Newspaper's request, existed at the time of the we will determine whether a record's non-existence provides statutory exception" a "clear to disclosure under the Blum, records law. See 209 Wis. 2d at [public] right 388. "The records law affords the to inspect copy and make or receive a of a 'record.'" George, (quoting 169 Wis. 2d at 579 Wis. Stat. 19.35(l)(b)). 19.35(l)(a) § § Wisconsin Stat. that, states "[e]xcept provided by any requester as otherwise law, right inspect any has a to record." Wis. Stat. 19.35(l)(a) added). 19.35(l)(b) (emphasis Similarly, § "[e]xcept provided by any that, states as law, otherwise requester right inspect has a a record and to make or 19.35(l)(b) copy receive a of a record." Wis. Stat. added). (emphases Accordingly, pro- records law right inspect duty

vides neither a nor a to disclose a George, non-existent record. See 169 Wis. 2d at 579 (holding "[a] non-existent record cannot in- spected copied" [public] "[t]he or records law does require the custodian to . . . create a record for the requester."). governmental entity may benefit of a A by failing to of a record circumvent disclosure not legally required to create. a record that it is create require public does not However, the records law government a non-existent create a record or release to designed public to make The records law "is record. existing public unless with records available by specifically holding authorized such documents is added) (emphasis ¶ Gehl, 2d law." 306 Wis. 633). (citing Zinngrabe, 2d at See also Com 146 Wis. ("The supra, public pliance Outline, at 18 records law by existing provides to records maintained access authorities."). "[t]he public records law does not Thus, authority provide requested require information an to supra, Compliance Outline, at if record exists . . . ." no provides a clear short, 18. In a record's non-existence statutory exception public to disclosure under records law. Newspaper's persuaded 74. We are not confidentiality-

argument applies only that Blum to a statutory exception to disclosure. The court based clear may appeals held that it consider a "clear of statutory exception" in Blum although disclosure, to the custo response rely exception in to a dian did not on the its Blum, 209 Wis. 2d at 387 — 88. records Although confidentiality statute, the court discussed that kind of statute at issue in it did so because was suggest holding not that its that case. The court did confidentiality-based statutory excep limited to was Breier, Further, in the court did not address the tions. statutory issue of whether a custodian could assert a exception, non-existence, such as a record's for the first action has filed. time after a mandamus been persuaded by Newspa- are 75. We also per's argument affirmative de- that the Commission's by failing Commission, to fense is barred because existed, that no record disclose hindered both the ability Newspaper's prepare challenge to and a ability sufficiency court's to review the of the Commis Accepting argument require sion's denial. this would unwilling Blum, us to overturn which we are to do. In appeals rejected fact, the court of in Blum the same argument. appeals See id. at 386-88. court of explained requires Blum that Breier custodians specific responses requests in their so sufficiency responses. that can courts review the However, Id. at 386-87. if "the information specifically exempted by is statute disclosure," from legislature already has determined that the infor reviewing "[A] mation need not be disclosed. Id. at 387. court's de novo determination whether certain infor statutorily exempted mation is from disclosure is not by anything might say aided a custodian in a denial letter, nor is it deterred the custodian's silence." Id. present although at 387-88. In the case, the Commis responses sion's did not state that existed, no record impair ability that omission does not our to determine statutory exemption applies.26 whether a to disclosure ¶ 76. We conclude that under the circumstances presented, may this court consider whether a record public request existed when the records made, was though response request even the custodian's to the disagree Newspaper's argument We also with the ignore we should the Commission's affirmative defense be- actively Newspaper cause the Commission misled the into believing that a record existed. There is no evidence that actively Newspaper. Commission misled the The Commission responsive did not know a whether record existed when it responded requests. In addition to the fact that no record produced, existed that could be the Commission acted reason- ably in responding request to what it deemed to information. specifically

did not state that the record did not exist. (holding may that a court See id. at 388 consider statutory exception clear to disclosure even if a custo- rely exception response dian did not on that in its to a public request). foregoing Based on the discus- lawfully Newspaper's sion, the Commission denied the responsive no record existed at the because time of the Requests Responses

4. The and complicates ¶ 77. What and also clarifies this party may case is that each have made mistakes that regarding being exacerbated confusion quested what was re- responsive and the fact that no record existed. misunderstandings equate However, those do not ato records law violation such that the prevailed part." part "in substantial It is in because the diligence pro- Commission acted with reasonable vided more than information records law required produce, no existed to prevailed part has not substantial such that it is fees, entitled to recover reasonable damages, and other actual costs under Wis. Stat. 19.37(2). highlights § A review of the facts the reason- able confusion. special meeting

¶ 78. The Commission held a February days closed session later, on 2012. Two reporter Newspaper, Won, Christine for the e-mailed Deputy City Attorney two commissioners and Racine Letteney. Scott Won's e-mail asked information, officially asking stated, a record. Her e-mail "I am on the record to know the vote each commissioner from of meeting Monday [February [Commission] the closed they reopen police 20, 2012,] in which decided to added.) (Emphasis chief search." later, 79. Won sent a clarification e-mail hours — 19.88(3) asking "Under statute I am which stated: [] for the recorded motions and votes of each Commis meeting Although . . . ." this time sioner at closed votes," her re Won asked for "recorded motions 19.88(3), quest part was based on Wis. Stat. which is meetings open law, not the records law. of 19.88(3) requires governmental Section bodies to re cord their "motions and roll call votes." Wis. Stat. 19.88(3). expressly That statute does not state when e-mail, a record must created.27 In the same Won be again stating, appre "I information, asked for would practicable ciate as and with this as soon information added.) delay." (Emphasis out response ¶ 80. The Commission's March 7 stated "[y]our specific [Com- vote for the of added.) Similarly, (Emphasis mission] ... is denied." e-mail, in its March 9 the Commission stated that it denying had a "for the release the vote of lawful basis February meeting." [Commission] 20, 2012 from its added.) (Emphasis Although that e-mail stated "performing required was balanc- Commission seemingly ing meant records," test for the release of it balancing applying to determine that it was this test whether it release the information should immediately. Specifically, the Commission stated that import [Newspaper] having "the it understood and, therefore, offered to release "the this information" 19.88(3) implic- Newspaper argues that Wis. Stat. § itly requires practicable created "as soon as 19.35(4)(a). delay." express We no without See Wis. Stat. § However, argument. we that the "as soon opinion this note on 19.35(4)(a) delay" language practicable as and without of § respond of time to to a allows a reasonable amount

specifics February 20 vote" within five business added.) days hiring police (Emphasis a new chief. Newspaper's ¶ 81. On March 12 the final again asked information, not a record. The News- paper stated that it "would like the information imme- diately." days hiring 82. On March two after a new

police requested chief, the Commission e-mailed the Newspaper. information to the The Commission did not release a record at that time because no record containing information existed before May Newspaper argues, part, waiting 21. The that long waiting long. this for the information is too obligation provide Commission is under no informa- response tion in ato records reasonably interpreted 83. The Commission Newspaper's requests e-mails as for information, imagine not Indeed, minutes. it is difficult to that a reporter, sophisticated requester local and wordsmith, displayed familiarity who Commission, with the would thought meeting have minutes were available a days special meeting mere two after a was held and they completed before would have been in the Commis- ordinary Perhaps why sion's course of business. that is requests responses are framed in terms of access to information. In fact, the did not clarify September until 2012, when it moved for sum- mary judgment, actually seeking meeting that it was minutes and that the information it received in March unsatisfactory. 2012 was Could both sides have done Although required, better? Yes. specified only

could have it wanted an actual specifically, or, record more minutes. The Commission clearly replied could have that no record existed. Newspaper's requests However, the and the Commis- dialogue responses the a between demonstrate sion's provided response parties information was wherein request no record at a time when for information ato complain Newspaper Notably, does not the existed. the record. it failed to receive that presented ¶ the circumstances Nonetheless, pro- the Commission that in this case demonstrate pertinent to the hid, information vided, rather than Newspaper the this action before The filed it it knew that would and after was created record, of the The creation the information. receive produc- lawsuit, caused the record's than the rather timing upon argument Newspaper's rests tion. The meetings open law. under the record's creation meetings open Again, law case. is not an this was not re- Commission We note that the specific respond The quired date and time. a to ways. of answered a number could have Commission Newspa- notify necessarily required to It was not per provide it after the information it would 19.35(4)(a), Stat.] "[U]nder [Wis. decided to do so. triggers request receipt public] [a a either records duty produce duty respond to or City requested Elkhorn, 2002 ECO, Inc. v. records." App 655 N.W.2d 510. Wis. 2d 24, WI explicitly Law does not Records "Wisconsin's Public notify. requester, custodian] [a as require . the . request' ’fill[s] [custodian] long so and does as the delay.'" practicable Racine and without as 'as soon (quoting Wis. Stat. II, 2d at 523 Ass'n 145 Wis. Educ. 19.35(4)(a)). did both. Nevertheless, the Commission it would on March 9 It notified Newspa- requested information soon. release filing responded by per March 22 a lawsuit. On — through provided Commission followed the News- paper with the information, albeit not in Newspaper responded by serving record form. The Moreover, lawsuit on the Commission. even before the request, made its the Com- already press mission had issued a release.

¶ 86. While the records law does not im pose specific timing requirement instructing when to file a action, mandamus when a mandamus action is may significantly requester filed influence whether the "prevailed" part" has in "substantial so to be awarded attorney damages, fees, reasonable and other actual timing language requests Here, costs. the and of the responses, timing filing and the and service of voluntary provision lawsuit, the the information, of responsive play and the fact that no existed, record all analysis a role in our has not prevailed part in substantial so to receive the award causally that it seeks.28The lawsuit was not related to the release of the record—the record was not in exis tence when the lawsuit was commenced or even Here, served. the Commission's conduct was reason able under the circumstances. practical

¶ many 87. As a matter, smaller jurisdictions, governmental body a local can be swamped public requests may with records need a period respond any given substantial of time to request. II, See Racine Educ. Ass'n 145 Wis. 2d at (holding timely 523-24 that a custodian released a 28Even if the Newspaper would have known that no record pursued existed and an law, action under open meetings it would required have been complaint to file a with a district attorney days and then wait response for a from the district (4). attorney filing 19.97(1), before suit. See Wis. Stat. § requested). Many jurisdic- days it was after record 35 with issue, case at function one in the tions, like the part-time, help volunteer citizens. Governmen- of fairly infrequently. may meetings in a Even occur tal larger jurisdiction, may significant period time of respond For to a needed pas- appeals example, that the has held the court of City days sage 41of between Department's release of the re- Police Milwaukee quested Watton, 306 Wis. 2d was reasonable. grounds, The 311 Wis. 2d 52. other 36, rev'd on arguing that Wis. Stat. is incorrect 19.35(4)(a) requires immediate See id. disclosure. Newspa- than the is less exact records law per wishes. although requests We conclude Newspa- precise, responses than are less

and the part prevailed it per so to entitle in substantial has not damages, and other actual fees, to reasonable 19.37(2). No record existed. Stat. under Wis. costs timing Although required, the Commission's voluntary further information release of Newspaper's requested relief is demonstrates that argues Newspaper justified. it "was that The not Newspaper first when to the information entitled production, when the a month later not its actually what [Commission] We note that disclosed it." fact, was, in month later received a argument Newspaper's information, not a record. given timing it that release is curious about argue record, information, not a seems fact, In the News- earlier. have been released should just requested, in paper information it had the Com- on the it contrary this lawsuit form, served before Newspaper's asser- Therefore, mission. public tion, the records law does not declare that the Newspaper prevailed part in substantial when it made request any and filed and served the lawsuit before Newspaper's request record existed, and when the was provided, though for information, which was even required provide Commission was not information response public ato records 5. Precedent public 89. Precedent that, instructs us as re- litigation cords is concerned, the has not prevailed part in substantial in this action because the diligence. Commission acted with reasonable See Ra- II, cine Educ. Ass'n 2dWis. at 524.

¶ 90. In Racine Education Association I the Ra cine Education Association made a records re quest to the Board of Education for the Racine Unified May School 18, District on I, 1984. Racine Educ. Ass 'n respond, 129 Wis. 2d at 323. The board did not so the association filed a mandamus 7, action on June Id. Also on June the board filed an answer to the petition, arguing exempt mandamus that "it was un 19.35(1)(1), compli der sec. Stats., which states that ance with a is not mandated if by extracting new record would need to be made existing information from records." Id. On June 1984, the board "furnished the information" to the association. Id. Thereafter, the circuit court held that the action was moot and denied costs to the associa appealed, seeking tion. "attorney Id. The association fees and costs." Id. appeals 91. The court of held that the associa-

tion was not entitled to fees and costs under 19.37(2) prevailed Wis. Stat. because it had not

626 part.29 II, 2d 145 Wis. Racine Educ. Ass'n substantial "conclude[d] appeals court of 525. The at practicable." Id. at 524. request as soon as was filled pre "[t]he appeals board reasoned The court of programs computer had to three evidence that sented from the archived information extract the written to duplication "[t]here tapes." computer Further, were Id. 'bugs' program to be corrected." the usual errors and diligently, request if not "was records Id. by departments being expediently, on several worked position simultaneously." "The board's Id. at 523. required throughout to turn that it was has been doing [the association], but was the information to over timely voluntarily to "the failure . ..." Id. Because so by respond an unavoidable was caused to a diligence delay accompanied in the administra due substantially processes," "has not the association tive prevailed." at 524. Id. Similarly, present case, Commis- in the diligence responded to the News- with reasonable

sion in Ra- board paper's Like the Association, Commission Education cine 29 I the court of appeals Association In Racine Education prevailed plaintiff determining whether a test for adopted reasonable to and thus was entitled part substantial Wis. Stat. under actual costs fees, damages, and other Racine Educ. v. Bd. 19.37(2). Educ. Ass'n Racine for 326-28, 510 Dist., 129 Wis. 2d 319, 385 N.W.2d Sch. Unified I"). 1986) ("Racine appeals (Ct. The court of Educ. Ass'n App. make factual the circuit court matter for remanded remand, "awarded circuit court Id. findings. at 329. On v. Bd. Educ. Ass'n Racine the association. attorney's fees" to Dist., 427 Wis. 2d Sch. Racine Educ. Unified II"). ("Racine 1988) Educ. Ass'n (Ct. On App. N.W.2d II Association in Racine Education appeals appeal the court of entitled was not reversed, the association holding that attorney fees. Id.

voluntarily requested released the information but required maintained that it was not to release infor- responsive mation because no record existed. In fact, requested the Commission released the information being about three weeks before served with this law- filing suit, one and a half months before an answer to petition, the mandamus and two months before draft- ing meeting minutes at issue. Before the minutes containing requested drafted, were no record infor- mation existed. The Commission was even more dili- gent than the board in Racine Education Association responded because the Commission paper's request twice to the News- before the filed this law- respond prior suit, being whereas the board did not sued. duplication 93. Like computer errors and

"bugs" prevented being record from created earlier in Racine Association, Education may clerical timing error have contributed to the Commission's creation of a record. The Commission approve intended to February the minutes for the special meeting regular meeting at its next on March according practice to its approving standard minutes. But it was unable to do so because the minutes had not been drafted in time for the March meeting. Rogers Commissioner Commission's —the part-time secretary typically volunteer who takes notes and drafts meetings— minutes for Commission February was unable to take special notes on the meeting physically because he could not attend the meeting, which Accordingly, was called on short notice. shortly the minutes approved were drafted before and regular at the according meeting, May Commission's next on practice. to its standard In fact, the Commis- sion legally has required maintained that it was not anyway. minutes, it created them create those but Newspaper's support the accusation facts do not These [ly] fail[ed] to create "deliberate that the Commission scrutiny for its record" in order to avoid official acts. reasonable conduct 94. The Commission's custodians' conduct contrast to record

stands stark attorney fees, of reasonable that resulted awards brought damages, in other cases and other actual costs example, in For State ex rel. under Wis. Stat. 19.37. Vaughan Faust, 868, 2d 422 N.W.2d 898 v. 143 Wis. (Ct. Vaughan 1988), Ralph App. an inmate named January public request 1987, 26, on made a records meetings. parole seeking staff certain board records of Having Vaughan, no 2d at 869. received 143 Wis. request response, Vaughan repeated his records sev- having February 19. Id. Still later on eral weeks response, filed a mandamus action no he received approximately 13. Id. Two month later on March one custodian, 31, the records Gail later, on March weeks apolo- "supplied requested information and Faust, request." gized responding to his Id. her lateness in for allege not exist at that the records did Faust did not requests. the time of the Vaughan appeals held that The court of 95.

f damages under sec. costs, "entitled to fees was 19.37(2). "[a]fter that, It reasoned . . ." Id. at 899. complied Vaughan began action, Faust mandamus this by apologized Vaughan's requests and, letter, with delay." delay. explanation gave Id. for that She no unexplained voluntarily ceased her at 872. "Faust Vaughan's requests delay complying he after with Vaughan prevailed action. instituted this mandamus part." Id. at 873. substantial Similarly, requester ¶ 96. was awarded reason- damages, fees, able and other actual costs in ECO, Inc., case, ECO, 259 Wis. 2d 276. In that Incor- porated request City made a records to the April seeking engineering 24, 1996, Elkhorn on re- ¶ ECO, Inc., 276, cords. 259 Wis. 2d 2. "ECO was looking for these records because of severe water problems occurring property!.]" on its Id. "ECO sus- pected problems disruption were caused underground flowage either a man-made or natural as utility City "[T]he a result of construction." Id. neither responded April request produced 24, nor ¶ Id., documents." 24. In 1997 ECO city damages damage sued the to recover for the water property. Id., to ECO's 3 n.3. years passed

¶ 97. After several without a re- sponse request, to its 1996 ECO made request September an 22, Id., identical on city request, On October denied the reasoning improperly cited to the federal Freedom of Information Act instead of the ¶ Id., Wisconsin records 4. 19, law. On October repeated 2000, ¶ Id., ECO its 5. On December city provide 1, 2000, clerk stated that she would requested they ready. records when were Id. "ECO any response." never received further Id. At ECO's suggestion, attorney's the district office contacted the city urging requested twice, at least it to release the having records. Id. On 8, 2001, March heard no further response city, from the ECO filed a mandamus action City § ¶ Id., under Wis. Stat. 19.37. 6. "The conceded a [public] request" lack of defense to the records and upon payment copying offered to release the records city ¶ Id., costs. 8. On March 2001, the released the records to ECO. Id. [ECO's "Despite

¶ disclosures, these chief ex- 98. suspi- Olsen] remained officer, ecutive E. Christian ¶ Id., that additional records existed." 9. Olsen cious city employee city hall, showed him went to where requested many he of the records that had not Id. Those records had been removed been disclosed. city engineer's office around time ECO from city damage. in 1997 the water Id. The sued the over initial existed at the time of ECO's records request ¶¶ Id., n.3, in 9. Olsen in- records 1996. many city attorney requested of his formed city attorney withheld, records had been investigate ¶ Id., that he would the matter. 10. stated city 29, 2001, ECO sent a letter On March to attorney's requesting office, release withheld city attorney's responded. Id. The officenever records. "actual, the circuit court to award Id. ECO moved damages consequential punitive and costs and attorney's ¶ Id., fees . . . ." 11. appeals

¶ The court of held that "ECO is damages pursuant costs, to Wis. to fees and entitled 19.37(2)." ¶ Id., that, "under 30. It reasoned Stat. 19.35(4)(a), receipt public] [Wis. Stat.] [a records duty respond request request triggers either duty produce Id., records." or a any [to City provide response "The did not whatsoever 1996] request and therefore did not ECO's initial [public] comply law." Id. "Because we with records April Sep- letter and conclude that both the [public] were, fact, 22, 2000 letter tember damages wrongfully requests denied, must were which City Id., failed to 30. "Because the be addressed." comply respond and thus failed to to ECO's 19.35(4)(a), requirements with the of Wis. Stat. ECO damages pursuant costs, is entitled to fees and to Wis. 19.37(2)." Stat. Id. Vaughan

¶ 100. Unlike the record custodians in ECO, and the Commission acted with dili- reasonable gence providing requested information even issuing press when no record existed. In addition to voluntarily release, the Commission released re- quested being information before served with this creating containing lawsuit and before a record Further, information. the Commission released that shortly information it when said that it after it would— police By hired a new contrast, chief. the custodian in Vaughan requested being released the records after provided failing sued, no reason for to release the requested apologized earlier, records and for not re- leasing being ECO, the records sooner. In sued, after city against the ing conceded that it had no defense releas- requested city Further, ECO, records. still withheld some of the records and it ignored subsequent request provide ECO's re- cords that had been withheld. Furthermore, unlike the custodians in

Vaughan responded ECO, the Commission to the requests being Vaughan Vaughan before sued. In made requests apart, got two identical response several weeks no request, to either and filed a mandamus approximately making action two months after requester got response initial In ECO the no years, requests after several so he made more and filed requests a mandamus action. Some of those later went present unanswered. In the case, the Commission press receiving public issued a release before request, responded Newspaper's request first responded weeks, within two to the second days. respond The within two Commission did not to Newspaper's Newspaper final because the only days making lawsuit four after filed this its final request. However, the Commission released the re- Newspaper quested days information within six being being filed, of this lawsuit before served and any before record existed. A record custodian should not automati

cally subject potential liability be under Wis. Stat. 19.37(2)(a) actively providing § information, which required response public it to do in is not to a records request, requester to a when no record exists. While it might requester a better course to inform a no language public exists,30 the record of the records law specifically require response. Indeed, does not such a Vaughan custodians ECO and were liable for attor ney damages, part, fees, costs, and other actual they respond because did not at all to records requests responsive when records existed at the time requests. provided Here, the Commission infor Newspaper though mation to the even no record ex responses isted. The Commission's could have been Newspaper's requests better could have been but clearer. To hold the Commission liable under 19.37(2)(a) under the facts of this case would discour encourage, age, communication rather than between government requester. and a 30 Law, Justice, See Wis. Wisconsin Public Records Dep't 2012) Outline, Compliance State ex rel. (Sept. (citing at 18 Sevastopol, Zinngrabe v. School Dist. 2d 146 Wis. (Ct. 1988)) ("If exists, App. responsive no N.W.2d requester" of that the records custodian should inform available at fact.), http://www.doj.state.wi.us/sites/default/ files/dls/public-records-compliance-outline-2012.pdf.

¶ 103. While the is entitled to a timely response, precedential support it is without argue response. that it was entitled to an immediate obligation The Commission is under no to create a response request. record in to a is not response entitled to the release of information in to a earlier, As we noted Wis. Stat. 19.35(4)(a) allows a custodian a reasonable amount respond request. Here, of time to to a records withhold a fail the Commission did not record or to timely respond; no record existed at the time of the request, filing lawsuit, the of the or even when the lawsuit was served.

IV. CONCLUSION ¶ 104. We conclude that under the facts of this Newspaper prevail part case, the in did not substantial in this action and is therefore not entitled to reason- attorney damages, fees, able and other actual costs 19.37(2), § under Wis. Stat. because the Commission unlawfully deny delay subject did not or release of the open record. Whether the Commission violated the meetings properly law is not before the court because Newspaper request attorney did a not district to commence an under action Wis. Stat. 19.97. Under may Blum, 209 Wis. 2d we consider the Commis- responsive sion's defense that a record did not at exist request though the time of the even the Commission first raised this defense the mandamus action. Newspaper words, In other is not requested request entitled to its relief because its is supported by the facts of this or case the law. Both parties any misunderstanding, contributed to if there being requested one, was of what was and the suffi- ciency responses. any responsive event, In no request at the time of the and no record record existed produced because of the lawsuit. While records was exacting precision request not made with to be need be request, Newspaper deemed a valid requester experience and wordsmith with is requests reasonably sophistication. Here, the could perceived seeking information, rather than a record. as Although obligation provide under no information request, pro- response to a records the Commission questions vided the with the answers to its by providing subject Moreover, information. re- open meetings quest law. The Commission cites initially requests agreed later denied the records but provide, provide, and did information. At the time that the time of the and at provided, information was no record existed that could responsive have been production only longer record; of a it seeks

no seeks damages, fees, and other actual reasonable 19.37(2)(a). Whether a record costs under Wis. Stat. time of the should have been in existence at open meetings public law, matter is a Certainly the Commission cannot avoid records law. public request by failing timely create a case, however, In the Commission re- record. this diligence sponded Newspaper reasonable with main- and released the information while taining legally required do so and at that it was not nor a time when no record existed. Neither the facts Newspaper support the law the conclusion part." prevailed in "substantial appeals By the court of the Court.—The decision of is reversed. partici-

¶ PROSSER, J., T. did not 106. DAVID pate. (concur-

¶ ABRAHAMSON, J. 107. SHIRLEY S. ring). Newspaper longer requests The no a record of the motion or votes cast at the Commission's closed meeting February Newspaper

on 2012. The ob seeking it tained the information was about meeting days on March 2012. This was six after the Newspaper against filed this mandamus action 19.37(l)(a) (2011-12)1 Commission under Wis. Stat. days and 20 before Commission was served on April 22, 2012. Newspaper now seeks reimburse- attorney

ment under the records law for the damages, fees, and other actual it costs has incurred bringing against this mandamus action the Commis- sion. forth, 109. For the reasons set I conclude that is not entitled to recover reasonable damages, fees, costs, or other actual even

though many argu- is correct in of its compliance ments about its with the records law noncompliance and the Commission's with that law. I separately majority opinion write because confus- ingly toughest presented skirts around the issues provide guidance requesters, fails to needed to record litigants record custodians, and their counsel, courts. organized

¶ 110. This concurrence is into four parts.2 subsequent All references to the Wisconsin Statutes are

to the 2011-12 version unless otherwise indicated. many While there are statements and discussions majority opinion issue, with I which take I have limited the scope subjects of this concurrence to the I consider most pressing.

¶ provisions First, 111. I set forth the relevant (Wis. 19.21-.39) §§ records law Stat. and the (Wis. 19.81-.98). open meetings §§ law Stat.

¶ request Second, 112. I consider whether by Newspaper submitted constituted a valid record request under the records law. I conclude that it Any implication majority opinion did. in the that the Newspaper's request poorly was too worded to consti- my misleading tute a valid record in is, view, plainly and incorrect. agree third-party Third, I with the amicus Department

brief filed the Wisconsin of Justice that obligated respond the Commission was to the News- paper's request by stating record did not exist. Fourth, I consider whether the

is entitled to recover reasonable fees, dam ages, and other actual costs from the Commission. This primary presented is the issue in the case, instant 19.37(2)(a), it turns on whether under Wis. Stat. prevailed has "in whole or in substantial part" against in its mandamus action the Commiss ion.3 appeals

¶ 115. The court of remanded the matter Newspa- to the circuit court to determine whether per's mandamus action was a cause of the Commis- sion's release of information 22, 2012, on March such Newspaper prevailed part in substantial 19.37(2)(a) Wisconsin Stat. provides part in relevant that "the court shall attorney fees, award damages reasonable $100, of not less than requester other actual costs to the if requester prevails in whole or in part any substantial (1) action filed relating under sub. part to access to a record or of a record .. . ." reasonable entitled to and is action

the mandamus damages, attorney actual costs.4 and other fees, objects Newspaper remand, to the ¶ 116. the contending failure to tell the Commission's requesting Newspaper did it was that the record liability subjects as a matter the Commission exist of law. Newspaper my suffi- has not

¶ view, the In language argument ciently of Wis. to the its tethered 19.37(2)(a), grants fees, dam- which Stat. ages, requester has costs when and other actual part manda- prevailed in a in substantial in whole or that the Commission's Thus, I conclude action. mus requesting Newspaper it that was inform the failure to matter as a does not demonstrate a nonexistent prevailed Newspaper has substantial the of law that against part the Commission. action in its mandamus Although was sand- it seems bagged, not entitled to its is relief.

I statutory by examining begin frame- I dispute. underlying present work public law, Wis. records 119. I turn first public provisions of the §§ 19.21-.39. Several Stat. significant case: in the instant records law are (cid:127) 19.31, policy the declaration Wisconsin Stat. § law, deep reflects Wisconsin's public records 4 452, 458-59, Sullivan, WTMJ, Wis. 2d v. See Inc. 1996) (Ct. there is a (explaining that when App. N.W.2d 140 bringing a mandamus plaintiffs between causal nexus information," agency's surrender of and "the action part in the mandamus in substantial prevailed has plaintiff action). open

commitment transparent government.5 provides Section 19.31 policy that the public records law is to ensure that the has access greatest possible to "the regarding the information government affairs of and the official acts of added.) represent those . . . who them." (Emphasis Section 19.31 further directs that the law "shall be every construed in instance with a presumption complete public access, consistent with the governmental conduct of business." (cid:127) 19.32(2) Wisconsin Stat. § defines the word "record"

broadly "any as material written, drawn, on which printed, spoken, visual, or electromagnetic infor- mation ... ."

(cid:127) 19.35(l)(b) Wisconsin Stat. grants § members of the

public right "a inspect to a record and to make or added.) copy receive a of a (Emphasis record. (cid:127) 19.35(l)(h) Wisconsin Stat. § declares that a re-

quest to inspect, copy, copy or receive a of a record "is deemed purposes sufficient" for public of the records reasonably law "if it describes the record or the requested." (Emphasis information added.) (cid:127) 19.35(4)(a) Wisconsin Stat. provides § that the cus- record,

todian of a upon receiving request, a record shall practicable "as soon as and delay, without either fill the notify or the requester of the authority's deny determination to . . and the reasons therefor."

(cid:127) 19.37(1) Wisconsin explains Stat. § that if a written

request for disclosure of a record is submitted but the custodian delays withholds the record grant- or ing record, access to the then a mandamus action may brought to compel the record's disclosure. 5 See State v. Beaver 90, Dam Area Corp., Dev. 2008 WI ¶ Wis. 2d 752 N.W.2d 295. 19.37(2)(a)

(cid:127) requester allows Stat. § Wisconsin fees, damages of not "reasonable recover if the $100, actual costs ... and other than less part" in whole or substantial prevails requester 19.37(1) action. mandamus in a Wis. Stat. § primarily case revolves the instant 120. While provision public law, one records around Specifically, meetings open be relevant. law is also Newspaper requested of the motion a record cause the 19.88(3) body, governmental Wis. Stat. vote of a and 19.88(3) requires play. Stat. comes into Wisconsin recorded, stat call votes be and roll that motions meeting ing: call votes of each and roll "The motions preserved body governmental recorded, shall be aof prescribed inspection open public extent law]."6 [the records II of ch. 19 subch. interconnection be 121. The distinction meetings open law and tween Zinngrabe rel. v. School State ex law are illustrated Sevastopol, 629, 635, 431 146 Wis. 2d District of 1988). (Ct. Zinngrabe, App. In the court of 734 N.W.2d appeals law "does not stated that direct the to created or documents are be dictate which specific government Instead, records."7 maintain to duty "[t]he and the enforce- such records to maintain 19.88(3) does Wis. Stat. argues § The Commission at the Commission's vote in case because apply the instant 20, 2012, call February was not a roll meeting its closed on overlooks, however, Stat. that Wis. vote. The Commission 19.88(3) Regardless of recorded. requires also motions § vote, a roll call it was vote was whether the Commission's 19.88(3) that Wis. Stat. indisputably a vote on a motion required to be recorded. Sevastopol, 146 Dist. Zinngrabe v. Sch. State ex rel. of (Ct. 1988). 629, 635, App. 431 N.W.2d 734 Wis. 2d duty" grounded open meetings of such ment are in the governs right law.8The records law to access records—not the creation of records. statutory

¶ 122. With this framework in I mind, presented. turn the substantive issues II question presented ¶ 123. The first is whether submitted valid record I My supported by conclude that it did. conclusion is language by itself, Wis. Stat. 19.35(l)(h) (the provision governing sufficiency of requests), by case law. special meeting

¶ 124. At a Commission February held closed on session commis- previ- sioner moved to reconsider candidates who had ously applicants pool been eliminated from the open position. police chief made, motion was by approved seconded, and a voice vote. day,

¶ 125. Later that the Commission issued a announcing press According release its decision. press release, the Commission had "determined that it preferred pool moving to have a broader of candidates press forward." The release did not which state com- made, seconded, missioners had or voted favor of the motion. Shortly

¶ 126. after the Commission issued its press Newspaper published release, an article reporters, regard- written Won, Christine one of its ing applicant the Commission's decision to broaden its pool. According article, to Won's certain members of

8Id. community deci- critical of the Commission's were accusing of racial and the Commission

sion were discrimination. February days

¶ 2012, two after the On meeting, special e-mailed the Com- Commission's Won request cast a record of the motion and votes mission meeting. at the apparently had been to direct 128. Won told "open request" of the

her to the custodians records seeking. Accordingly, Won e-mailed the record she was president asking secretary "to Commission, special know" each Commissioner voted at how part meeting. e-mail read in relevant as follows: Won's my directly open I was told to make president asking you am as the custodians so secretary respectively. of the commission officially asking I on to know am the record the vote meeting from PFC each commissioner the closed Mon- day they reopen police chief which decided to search. you deny please provide expla-

If choose to written nation. up 129. Won followed with second e-mail day. specifically re- e-mail,

same In her second Won [] quested "the recorded motions and votes of each meeting. (Emphasis . . at the closed ." commissioner added.) part e-mail read in relevant follows: This as — 19.88(3) asking Under I am for the recorded statute and votes of each PFC commissioner at the motions meeting including who Monday, closed on made the motion and who seconded it. appreciate

I would practi- this information as soon as delay. you deny cable and without If choose to this request, please provide explanation. a written ¶ 130. These two e-mails constitute the record request in at issue case. instant clearly

¶ 131. first Won's e-mail states "infor- requested" by asking mation for "the vote of each meeting Monday commissioner from the closed PFC they reopen police which decided to chief search." specifies "requested Won's second e-mail further by asking record" for "the recorded and motions votes [ ] meeting each commissioner at closed on Monday, including who made the motion and who seconded it." These e-mails make clear what Won was seeking request. a constitute valid record majority

¶ opinion directly 132. The does not repeatedly However, contradict this conclusion. it im- plies imprecise that Won's e-mails too were consti- a tute valid record majority

¶ opinion 133. The contends that "the requests reasonably perceived seeking could as information, rather than a record."9 It also observes provision open that Won's second e-mail cited (Wis. 19.88(3)) meetings law Stat. than rather Finally, majority opinion law.10 characterizes the as a "wordsmith with experience sophistication," suggesting that record requests by journalists submitted meet must some special clarity beyond applied standard of to other requesters.11

9 Majority op., ¶ 8.

10Id.

11Id., 54, ¶¶ 105. majority Any opinion implication in the e-mails did not constitute valid record

that Won's my request plainly I incorrect. take this is, view, position for four basic reasons. First, the standard for meets 19.35(l)(h).

sufficiency This set forth in Wis. Stat. request provides "is that a record deemed section reasonably re sufficient if it describes added.) requested." (Emphasis cord or the information 19.35(l)(h) explains not Case that Wis. Stat. does law any require 'magic request a record "to contain words' any it] prohibit do[es of words."12 In the nor the use reasonably request case, the record described instant being requested is and information and record therefore valid. majority opinion's

¶ Second, the statement reasonably perceived as that seeking e-mails could Won's per- is information rather than a record not suasive. explicitly

¶ e-mail, In her charac- first Won request "open request." her an records In her terizes as specifically requests e-mail, Won "the recorded second [] and votes of each commissioner at the closed motions including meeting Monday, on who made the motion added.) (Emphasis In and seconded it." combina- who tion, make that Won was not these statements clear just requesting encapsulated not information that was containing requesting a record in record. She was specific her information, which she described in e-mails. 12 ECO, 23, City of Elkhorn, App Inc. v. WI 259 2002 ("None requires

Wis. these statutes 2d N.W.2d 510 of they prohibit any "magic contain nor do words" words."). any use of ultimately sought course, 138. Of what Won obtain was information. But this fact does not under- validity mine the Won's

¶ 139. A distinction can be drawn between re quests public governed by records, for which are public requests law, for information not subject records, contained which are not public majority opinion goes However, records law. dichotomy far and too creates a false two, between the suggesting request may that a either be for records or not information, but for both.13 140. The words "record" and "information" are mutually parlance either in exclusive common or pursuit under the records law. Because the driving information is the force behind record re- quests, meanings of the two words are intercon- overlapping nected context records law. example, legislative

¶ 141. For the declaration of policy § set forth at Wis. Stat. 19.31 refers to the public's right public the under law to records access regarding governmental pro "information" business, viding policy public that it is the state's that "all persons greatest possible are entitled informa public policy, § . . . ."14 tion To further 19.31 fur provides ther law records "shall be every presumption construed instance with a of complete public access, consistent the conduct with of governmental business."15 13 ("[T]he Majority op., requests reasonably ¶ 54 could (Em- rather than

perceived seeking information, as record." added.)) phasis 14Wis. Stat. 19.31. § Inc., ("[T]he ECO, See also 276, legis- 23¶ Wis. 2d public policy presumes accessibility lature's well-established 19.35(l)(h) § refers to

¶ Likewise, Wis. Stat. 142. stating request that a records, information both reasonably de- "if it sufficient record is for a re- or the record scribes information added.) language express (Emphasis of quested." 19.35(l)(h) major- implication in the § contradicts ity opinion e-mail to the initial Won's that because she was seek- the information described Commission seeking, not ing she did she was the record but not record make a valid majority suggestion in

¶ short, In reasonably opinion have been e-mails could that Won's requesting interpreted rather than a information as policy language of conflicts with record public e-mails that Won's law. I conclude notwithstanding request record constitute a valid obtaining goal information. Won's ultimate majority opinion's reliance on Third, the 19.88(3) (a provision § to Wis. Stat. Won's reference law) open meetings that the to demonstrate within the misguided. request refer- is Won's not sufficient was 19.88(3) request record not render Won's does ence to invalid. particular explained, previously no 145. As particu request, prohibited so no in a record are

words necessarily language invalidate or references lar 19.88(3), request.16 reference to Thus, Won's dispositive. This conclusion is itself, in and of is City supported Elkhorn, 2002 WI ECO, Inc. v. App ¶¶ 276, 655 N.W.2d 25-26, 259 Wis. 2d although appeals determined that the court of in which Freedom of the federal at issue referenced open records laws be liber- and mandates public records ."). . . . ally to favor disclosure construed 16 Id., 25-26. ¶¶ (FOIA) public Information Act instead ofthe Wisconsin request law, it was a valid record under the public Wisconsin records law. importantly,

¶ 146. More Won's reference to the (that 19.88(3)) open meetings is, § law to Wis. Stat. 19.88(3) necessarily pro- was not incorrect. Section govern- vides that the motions and roll call votes of a body preserved, open mental shall be recorded, and to public inspection pursuant prescribed to the extent in (the law). subchapter Chapter public II of record In sought case, the instant Won a record of the motion special meeting and votes of Commission at a held 19.88(3) February on 2012. Her reference to can reasonably indicating be understood as that she be- lieved the motion and votes would recorded be 19.88(3) pursuant made available to her and the 19.88(3) public records law. Section was, short, highly request, relevant to Won's record and Won's reference to it does not invalidate her journalist Fourth, Won's status as a validity does not affect the of her request record whatsoever. Neither the statutes nor support types the case law the notion that different requesters clarity must meet different standards of requests their order for deemed sufficient under the records law. sum, In for all the forth, reasons set I

conclude that Won's e-mails constituted a valid record request under the records law. Because Won reasonably being described the record and information requested, the record was sufficient. The ma- jority opinion's suggestions contrary are mis- leading unpersuasive.

Ill question pre- second I turn to was request, record to Won's responding In sented: re- that to explain obligated the Commission that it was. I conclude yet did not exist? quested a record that was requested Won's e-mails 19.88(3) but under Wis. Stat. § created be required did The Commission yet produced.17 had not been that right just it had the not Newspaper asserts right that it had the requested but also the record Won obtain Newspaper, the According to the promptly. the record to obtain more requested was one the record Won delayed creation of example of the Commission's violating the letter and both meetings laws. open spirit of explains in its Department of Justice Wisconsin As the 19.88(3) parliamentary proce- brief, Wis. Stat. § amicus body must record suggest governmental a strongly dure meeting or as soon votes at the time all motions and Department specifically, More practicable. as thereafter interprets 19.35(4)(a) that a Stat. § statement in Wis. practicable and without provided "as soon as response must be delay" as follows: working days generally policy is a reasonable is that ten

DOJ request responding simple for a limited number of to a time for scope, requests easily that are broader identifiable records. For documents, many location, require of review or redaction or that However, may longer. responding if a reasonable time for working days, it response provided ten is DOJ's cannot be within indicating response that a is practice to send communication being prepared. Justice, Law: Wis. Stat. Wis. Public Records Dep't Wis. 2012), (Sept. avail- Compliance Outline at 13 19.31-19.39 §§ (last 2015). visited June http://tinyurl.com/ljx49na able at promptly recorded and votes to be Requiring motions meaningful public access to policy providing furthers the decisions and decision- governmental about information 19.31, contrast, In Stat. 19.81. making processes. See Wis. §§ tell Won that she had a nonexistent Instead, record. the Commission sent Won two e-mails stating denying that it was Won's record public policy reasons. The e-mails forth set two differ- denial, ent reasons for the both of which the Commis- sion has since abandoned.

¶ 151. The Commission's first e-mail cited a case governmental meeting that held that a vote a closed "merely formalizes the result reached in the deliberat ing process,"18implying that the Commission believed required the commissioners' vote was not to be re corded. The Commission's second e-mail cited policy denying request, including reasons for Won's well-being concerns about commissioners' if their public. votes were made By providing

¶ 152. these reasons for denial its request, implied Won's record the Commission that the requested being record existed but was withheld. The Newspaper responded apparent to the Commission's withholding by filing of the record a mandamus action 19.88(3) construing imposing mandatory Wis. Stat. as no recording governmental body's timeframe for motions and requirement votes would render toothless the that such mo- governmental tions and votes be recorded and would enable deprive public meaningful important bodies to access to by indefinitely postponing information a record's creation. mind, With this in I conclude that the record Won re- quested timely by was not created the Commission. The February 20, meeting, minutes of the Commission at reopen police applicant which pool the motion to chief was made, seconded, approved a voice vote were not made May 22, 2012, public inspection available for until three meeting place. months after the took 18 21 Appeals, State ex rel. Cities Serv. Oil Co. v. Bd. of (1963). 516, 539, Wis. 2d N.W.2d compel the record. The Commission disclosure of know, that the record did not knew, but the did not exist. the Commission informed Won 153. Had requested exist, did not the News- record she had compel

paper it would have known could the nonexistent record under Commission to disclose Consequently, public records law. under filed a futile mandamus action would not have 19.37(l)(a). sought It instead have Wis. Stat. could compel the record under the the Commission to create open meetings law. litigation spawned by short, In this was

the Commission's failure to inform Won that the record Indeed, court, exist. in this she did not primary arguments to defeat the News- Commission's paper's on the fact that the record did not claims rest reasonably in exist, not that the Commission acted or good faith. Unfortunately,

¶ the in commu- 155. breakdown underpins present likely the case seems nication Requests public in records are to recur other cases. inevitably requests common, and some will be filed for pres- The case therefore nonexistent records. instant opportunity provide a ents this court with valuable respond guidance to record custodians on how best to majority requests opin- for nonexistent records. The opportunity. ion fails to seize this adopt position by ¶ I the advocated 156. would Department the of Justice in its amicus Wisconsin simple In in custo brief: the scenario which record responsive record, the dian knows it has no custodian

650 practicable the as soon as notify requester must the record does not delay without exist.19 157. conclusion is the text of My supported

¶ law itself. the records public The records law is clear that a public not create a record to fill simply

record custodian need duty a record the to create a record must be request; silent, records public found elsewhere.20 law is however, say what a record custodian should regarding to a for a nonexistent record. I response only conclude that reasonable interpretation records law is that a record custodian must public notify responsive when no exists. requester My reasoning is as follows. f Department plays special The Wisconsin of Justice regard public legislature records law. The has role with General, Attorney supervises accorded the who and directs Justice, special significance interpreting Department of legislature specifically law. The has authorized records any Attorney person applica- to advise about the General bility Attorney has of the law. Wis. Stat. 19.39. The General opinion not issued a formal or informal letter or other docu- Rather, regarding presented ment the issue in the instant case. Department nonparty expressing of Justice has filed a brief advice, Attorney opinion, view. The General's and brief are its court, binding may give persuasive this but we them on County County, effect. Juneau Star-Times v. Juneau See n.18, WI 345 Wis. 2d 824 N.W.2d 457. Furthermore, issued a Department of Justice has (Compliance document entitled Wisconsin Public Records Law Outline) government public in that assists entities and the law. See Wis. interpreting applying Justice, Law: Stat. Dep't of Wis. Public Records Wis. 2012), (Sept. at Compliance 19.31-19.39 Outline available §§ (last 2015). 15, http://tinyurl.com/ljx49na visited June 20 Zinngrabe, at See 146 Wis. 2d

651 19.35(4)(a), "[e]ach 160. Under Wis. Stat. au- thority, upon request any record, shall, for as soon as practicable delay, request and without either fill the or notify requester authority's determination to deny request part in whole or in and the reasons added)." (emphasis statutory options are, therefor comply deny therefore, to with the record or to provide explanation. grant it and an A refusal to access to the request. record amounts to a denial of the explaining deny ¶ 161. In a decision to a record request, forthright a record custodian must be specific.21 pay legislative

¶ 162. To heed to the declaration policy public greatest is "entitled to the possible regarding governm information the affairs of responsi ent,"22 and to meet the record custodian's bility explaining specificity grant with a refusal to to a record, access a record custodian faced with a (or request for a record that the custodian knows know) promptly should does not exist must inform the requester that the record does not exist. My supported conclusion is written

guidance Department the Wisconsin of Justice provided complying has on with the Department explained records law. The of Justice has 21 Breier, Newspapers, 417, See 427, Inc. v. 89 Wis. 2d (1979) N.W.2d (providing that if a record custodian denies request, specific "he public-policy must state reasons refusal," for the "provide which will a basis for review in the action"). event of court See also State ex rel. Kalal v. Circuit County, 53-57, Court Dane 2004 WI ¶¶ 271 Wis. 2d (discussing common, 681 N.W.2d 110 dictionary, plain statute). meaning definition of the word "refusal" a different 22Wis. Stat. 19.31. require "[t]he records law does not authori that fulfill new records order to ties to create responsive [i]f requests," exist, no records but" say response."23 authority in its should so judi ¶ of common sense and 164. Considerations my Notifying efficiency support further conclusion. cial requested requester record does not exist appearance delay, of and confusion and the "avoids unnecessary litigation."24 A of decreases the likelihood that a record custodian who knows record requester to inform the does not exist but fails repeat requester fact follies invites diligent requester Newspaper A in the instant case. compel disclosure of a nonexistent will seek in vain to by filing action. a mandamus easy comply for custodians to with It is obligation requester the nonexistence of to inform a already required to custodians are a record. Record requests respond under Wis. Stat. to valid record 19.35(4)(a). Why record custodians faced shouldn't requests records tell the truth for nonexistent with requests by explaining response that the re- to such do not exist? cords obligated was sum, In the Commission requested did not exist. that the record she

inform Won obligation, spur- fulfill that The Commission failed to ring litigation unnecessary protracted now and causing both the before this court unnecessary expenses. incur the Commission to Justice, Records Law: Wis. Stat. Dep't of Wis. Public Wis. 15, (Sept. 17 — 18 Outline at Compliance 19.31-19.39 §§ (last June 2012), visited http://tmyurl.com/ljx49na at available 2015). Justice, Department of Non-Party Brief of the Wisconsin at 12.

IV finally, question ¶ 167. I turn, of whether the ney is entitled to recover reasonable attor- damages,

fees, and other actual costs incurred in against the instant mandamus action the Commission. I conclude that it not. is 19.37(2)(a),

¶ 168. Pursuant to Wis. Stat. the Newspaper attorney can recover fees, reasonable dam- ages, only prevailed and other actual costs if it has in part or in whole substantial in its mandamus action 19.37(2)(a) against provides the Commission. Section part in relevant as follows: (2) (a) Costs, fees, damages, Except and provided as paragraph, in this the court shall award reasonable attorney fees, damages $100, than not less and other requester actual requester costs to the if the prevails part any in whole or in substantial filed action (1) relating under sub. to to a part access record or (l)(a). a record under 19.35 s. public ¶ 169. The law records is silent with re- gard remedy requester to the available when a is induced to file a mandamus action under Wis. Stat. 19.37(l)(a) Newspaper what the characterizes as misleading responses a custodian's ato record Newspaper reasonably The asserts that it believed denying that the Commission's stated reasons for the request Newspaper were invalid and that the justified commencing present was therefore mandamus action. According

¶ Newspaper, failing to the to Newspaper order the to Commission reimburse would reward the Commission for its obfuscation and procedural require- would allow custodians to flout the public purpose records law with of the merits According impunity. Commission, the nonexis- to any potential for record eliminates tence liability public records law. under the whatsoever argument By Newspaper's has merit. Newspaper declining grant relief, its discouraging the risk of this court runs seeking requesters to enforce from other record right in the future access their incurring fees and the substantial fear of faces. This result would now costs purposes of records law. antithetical supports granting policy the News 172. Public paper's reasonable attor for reimbursement of damages, ney if, even as and other actual costs fees, believe, have us the Commis the Commission would simply intent, mistake, no malicious made a with sion up attempt "Prac an official act. to cover and did very have few of our citizens realities dictate that tical present during ability personally the conduct to be government If are to have an informed we business. eyes public, and ears of as the the media must serve danger public."25 media will not is that the great. is too in if the financial risk serve this role ¶ the statutes Nevertheless, I conclude that 173. Newspaper relief it seeks. do not afford 19.37(2)(a) requires ¶ § 174. Stat. Wisconsin prevail in substantial must whole or against part Commission action in its mandamus and costs. awarded fees appeals Relying ¶ law, the court of on case circuit court to determine the matter to the remanded Showers, 2d Newspapers, Inc. v. 135 Wis. State ex rel. (1987). 398 N.W.2d Newspaper's whether mandamus action awas cause of the Commission's release of information on Newspaper prevailed 22, 2012, March such that the part substantial in its mandamus action and is en attorney damages, titled to reasonable fees, and other actual costs.26 Newspaper objects

¶ 176. The to the decision of appeals, the court of which remanded the matter. The Newspaper urges that as a matter law, it has prevailed part in substantial in its mandamus action against According Newspaper, the Commission. to the precluded abandoning the Commission is from reasons set forth in its initial denials of Won's record belatedly arguing requested and from that the Newspaper argues record did not exist. The that the by misleading responses Commission is bound its remaining now has no defense at all. Newspaper's argument 177. The essence of the

is that the Commission violated the records law by failing to inform Won that the record she had provide did not exist and that the law must remedy for that violation. Although it tries, cannot successfully argument damages, tether its fees, 19.37(2)(a). language costs of Wis. Stat. Section 19.37(2)(a) provides plaintiffs right with the to recover damages, reasonable fees, and other actual only specified costs under the circumstances in the plaintiffs prevail statute: when in whole or in sub- 19.37(1) part stantial in a Wis. Stat. mandamus satisfy action. The record in the instant case does not 26 WTMJ, Inc., See 204 Wis. 2d at 458-59 (explaining that when there is a causal nexus between a mandamus action and agency's "the information," surrender of plaintiff has prevailed action). part substantial in the mandamus

656 Newspaper statutory requirement has because the this prevailed in or in it whole that not demonstrated part action. Further- in its mandamus substantial remand as the not seek a more, the does reluctantly Accordingly, appeals I ordered. court of to the is not entitled conclude damages, and other actual fees, reasonable requests law. under the that it costs on if I did not comment I would be remiss misguided majority opinion's of State ex discussion Education, 209 Wis. 2d rel. Blum v. Board of 1997). (Ct. requester App. Blum, In 140 565 N.W.2d copy The academic records. of a student's asked for records, but to release the student's refused custodian statutory provision response cite the failed to its keep right grants their records students the that private.27 appeals a refusal concluded that The court of inadequate reason "does record for an to release a prevent determining whether a 'clear a court from support statutory exception' applies" refusal.28 statutory express hinged ex an Blum on ception Stat. 19.35. mandate of Wis. privacy statutory exception implicated express apply party.29 rights in the does not Blum of a third majority opinion Try might, as it instant case. statutory exception applicable to cannot locate a clear 27 19.36(1) "[a]ny provides Stat. § Wisconsin by or state exempted from disclosure specifically which is exempted from disclosure to be law or authorized federal 19.35(1)...." under s. exempt from disclosure law is state Blum, Statutes, applicable in 118 of the Wisconsin Chapter confidentiality pupil records. mandates 28 Johnson of Educ., Sch. Dist. Blum v. Bd. State ex rel. (Ct. 1997). Creek, App. 377, 388, 2d 565 N.W.2d 209 Wis. (2). (d) 118.125(l)(c), & See Wis. Stat. § present majority opinion the Instead, case. cobbles together provisions conclusory several and in a fashion opines provides that "a record's non-existence a clear statutory exception to disclosure under records law."30

¶ applicability statutory Blum, 181. In exception should have been obvious and well known to requester, the custodian, and the courts. In the uniquely case, instant whether the record existed was only Newspaper known to the Commission, not to the or the courts. In the case, Blum, instant unlike in (the Commission) provide custodian did not sufficient (the requester Newspaper) notice to the to enable it to challenge the denial of its record and did not provide judicial a basis for review.

¶ sum, In I conclude that request; submitted a valid record that the Commission obligated respond truthfully to, was not, but did Newspaper's request by explaining despite exist; record did not and that record, on this promptly the Commission's failure to inform the News- paper that the record did exist, is not entitled aas matter of law to recover fees, damages, or other actual costs under the law. The record before the court does not fulfill the 19.37(2)(a) requirements set forth at Wis. Stat. in the case law. sepa- 183. For the forth, reasons set I write

rately.

¶ 184. I am authorized to state that Justice ANN joins opinion. WALSH BRADLEY this 30Majority op.,

Case Details

Case Name: The Journal Times v. City of Racine Board of Police and Fire Commissioners

Court Name: Wisconsin Supreme Court

Date Published: Jun 18, 2015

Citation: 866 N.W.2d 563

Docket Number: 2013AP001715

Court Abbreviation: Wis.