WILL Supports Open Government Protection Act

Legislation ensures government’s openness and accountability to citizens

The News: On Tuesday, Representative Todd Novak (R-Dodgeville) and Senator Duey Stroebel (R-Cedarburg) released The Open Government Protection Act (LRB-1777/LRB-1199). The legislation would make clear that a party “prevails,” and may recover their attorney fees under state law, when a government agency releases records after a lawsuit is filed. The Wisconsin Institute for Law & Liberty (WILL) proudly supports this important policy reform, which reflects recommendations from our July 2022 report “Broken Records: A Call for Legislative Reform in Wisconsin Public Records Law.”

The Quotes: WILL Deputy Counsel, Lucas Vebber, stated, “The ability to request public records is vital to ensuring transparent and accountable government. Sadly, WILL has seen its fair share of Open Records Requests unfulfilled or simply ignored by government actors. It is the government’s duty to respond to citizens efficiently and in a timely manner—this bill ensures accountability when government tries to avoid transparency.”

State Representative Todd Novak (R-Dodgeville), said “Openness and transparency are the cornerstone of a well-functioning government. Wisconsin’s public records laws empower citizens to keep a watchful eye on the use of public funds, highlight wrongdoing among government officials, and combat fraud and other forms of government corruption. Our bill will restore the status quo and maintain our state’s strong history of open and transparent government. As the current mayor of a city and former newspaper editor for 25 years, transparency in government is imbedded in my beliefs.”

State Senator Duey Stroebel (R-Cedarburg), said “This legislation is critical to ensuring our public records law functions as intended when a government actor gets taken to court for failing to comply with the law. Absent the restoration of longstanding precedent this bill would achieve, the taxpayer-funded entities who have shown a tendency for flouting public records requests could be further emboldened to skirt the law.”

Background: When an individual requests records, and a government entity wrongfully refuses to turn them over, the individual may file a lawsuit to obtain the records. Historically, once that suit was filed, the requester could recover the attorneys fees they incurred from bringing the suit, even if the government agency promptly backed down and turned the records over before the judge ruled on the case. This served as an important check in favor of transparency and accountability.

A recent Wisconsin Supreme Court decision, Friends of Frame Park, U.A. v. City of Waukesha, makes it more difficult for a record requestor to obtain their attorney fees. That case interprets state law to mean that a party can only “prevail” (and recover fees) when a court makes “a final decision on the merits” and “grants a judgement for one party over the other.”

In practice, government actors could now refuse to release records until a citizen has undergone the time and expense of filing a lawsuit, then release those records and potentially avoid having to pay the requestor’s attorney fees. This can make it prohibitively expensive for Wisconsinites to enforce open records requests that government actors refuse to comply with. The result will be fewer attorneys willing to bring those cases, thus thwarting the transparency and accountability that open records laws are meant to secure.

In response to the Frame Park decision, WILL released a policy brief calling for various legislative reforms that could restore the status quo, and make certain that everyday citizens do not lose the ability to hold government accountable. Without legislative action, the Wisconsin government transparency laws may lack the necessary teeth to force public officials to promptly turn over records.

The Open Government Protection Act: The bill alters the statutory definition of “prevail” to allow courts to award attorney fees in instances where the voluntary release of a record was substantially related to a record requestor filing a lawsuit, effectively returning to the methodology used before the Frame Park decision. This standard is also substantially similar to the standard that applies for a requestor to obtain attorney fees and costs under the federal Freedom of Information Act.

Where a government authority voluntarily or unilaterally releases a record, a judge could award attorney fees if the court determines that the filing of the action under the statutes was a substantial factor contributing to that voluntary or unilateral release: This practice provides an important incentive for governmental entities to produce records “as soon as practicable, without delay” as state law requires.

The bill is supported by the Wisconsin Institute for Law & Liberty, Wisconsin Freedom of Information Council, Wisconsin Newspapers Association, Wisconsin Broadcasters Association, Wisconsin Transparency Project, and Americans for Prosperity.

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