Conservative firm raises concern about Wisconsin Supreme Court open-records ruling

MADISON, Wis. (AP) — A conservative law firm is pushing back against a Wisconsin Supreme Court ruling that transparency advocates say has damaged the state’s open records law by limiting when people who sue over records requests can recover attorney’s fees.

The Wisconsin Institute for Law and Liberty on Thursday called for the Republican-controlled Legislature to strengthen open records laws in response to a 4-3 ruling earlier this month by the conservative-controlled Supreme Court that found that if an entity decides to release records after being sued, the requester can be awarded attorney’s fees only if a court issues a ruling, the Wisconsin State Journal reported.

“Without action, Wisconsin’s public records laws could be rendered toothless,” said WILL Deputy Counsel Lucas Vebber.

The full-time Wisconsin state Legislature would have to call a special session to do so, however, since it has been out of session since March and isn’t scheduled back until January of 2023.

In a policy brief, WILL urged the Legislature to amend state law to ensure that requesters will be able to recover attorney’s fees if they prevail in open records lawsuits. The brief offered multiple suggestions for how to amend the law.

Previously, requesters could recover attorney’s fees even if the agency they were suing decided to turn over records before a judge ruled on the lawsuit. That changed when the Supreme Court told community group Friends of Frame Park on July 6 that they were not entitled to attorney’s fees because the city of Waukesha, which they were suing, turned over records before a court ordered the city to do so.

Tom Kamenick, president of the Wisconsin Transparency Project, called that ruling “a dark day for transparency in Wisconsin.”

WILL raised concerns that the current interpretation will make it much more difficult to obtain public records.

“People will be forced to choose between self-preservation and civic involvement, and the desired goals of open and accountable government will be lost,” the firm’s policy brief reads.