¶ 44. (concurring). I agree with the majority opinion's conclusion that the peremptory writ issued April 27, 2006, did not dispose of the entirety of the Kenosha Professional Firefighters, Local 414, IAFF, AFL-CIO and Alan M. Horgen's (hereinafter collectively referred to as the firefighters) petition for mandamus to compel compliance with their open records request because it was not a final order with regard to the matrix scores they had requested.1 I write in concurrence because the lack of finality of the peremptory writ is the sole reason that this court should conclude that the January 19, 2007, decision denying statutory attorney fees is not a final order. Stated otherwise, because the firefighters moved for an award of attorney fees prior to the circuit court's rendering a final decision on the merits, their motion for attorney fees was premature, not late. Accordingly, I respectfully concur in the majority opinion.
*651I. BACKGROUND
¶ 45. This case arises from an open records request made by the firefighters. Because the firefighters were forced to go to court to obtain compliance with their open records request and because the circuit court concluded that the City of Kenosha (the City) improperly denied part of that request, the firefighters claimed a statutory right to "reasonable attorney fees, damages of not less than $100, and other actual costs" under Wis. Stat. § 19.37(2) (a).
¶ 46. Three decisions relating to the firefighters' open records request are at issue here: The April 27, 2006, peremptory writ, the January 19, 2007, decision denying the firefighters' motion for attorney fees as untimely filed and the April 26, 2007, decision denying the firefighters' motion for reconsideration of the January 19, 2007, decision. The firefighters contend that the April 27,2006, peremptory writ is not a final order under the provisions of Wis. Stat. § 808.03(1), and therefore, they were premature in moving for an award of reasonable attorney fees under Wis. Stat. § 19.37(2)(a). The firefighters argue that because the April 27, 2006, peremptory writ was not a final order on the merits of their claim, the January 19, 2007, decision denying fees could not have been a final order on the issue of fees in this case.
II. DISCUSSION
¶ 47. In recent years, we have attempted to explain what a judgment or order must contain if it is to be final for purposes of appeal under Wis. Stat. § 808.03(1). See Sanders v. Estate of Sanders, 2008 WI 63, 310 Wis. 2d 175, 750 N.W.2d 806; Tyler v. RiverBank, 2007 WI 33, 299 Wis. 2d 751, 728 N.W.2d 686; Wambolt v. W. Bend *652Mut. Ins. Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670; Harder v. Pfitzinger, 2004 WI 102, 274 Wis. 2d 324, 682 N.W.2d 398. Notwithstanding all of our efforts, the petitions for review that turn on the issue of finality keep coming.
¶ 48. Today we attempt to explain finality on the merits in the context of a peremptory writ of mandamus that was issued April 27, 2006.1 join the majority opinion's conclusion that the peremptory writ was not a final order on the merits of the underlying action.2 However, there is at least one other issue that may be affected by the lack of finality of the peremptory writ. This issue, and perhaps others, lurks, unspoken, in the majority opinion's discussion of whether the January 19, 2007, decision that denied the firefighters' request for fees was a final order.
¶ 49. The following is the issue that is apparent to me. Is it even possible for a decision denying attorney fees to have been an appealable decision because an appealable decision on the merits has not been made? To state the issue otherwise, even though there can be the entry of a final order on the merits of an action, i.e., an appealable order, when a request for attorney fees is pending, Baumeister v. Automated Products, Inc., 2004 WI 148, ¶ 31, 277 Wis. 2d 21, 690 N.W.2d 1, it does not necessarily follow that there can be a final order on attorney fees, i.e., an appealable order, when a final order on the merits has not yet been made.
¶ 50. The majority opinion's analysis seems to assume that the circuit court's decision denying fees could have been a final, appealable decision, even though the circuit court's decision on the merits was not final and therefore, not appealable. The majority opin*653ion gives this impression by examining the January 19, 2007, decision on attorney fees to determine whether the decision complied with Sanders and Wambolt.3 However, if a final decision on the merits, i.e., an appealable decision on the merits, is required before it is possible to have a final decision on attorney fees, then there is no need to do a Sanders/Wambolt finality analysis on the attorney fee decision because that decision could never be a final decision.
¶ 51. The connection between the lack of finality in the peremptory writ and whether the decision denying fees could nevertheless be a final decision for purposes of appeal was not briefed or argued. Furthermore, it is an open question that has not been directly addressed by a Wisconsin appellate court.
¶ 52. Hartman v. Winnebago County, 216 Wis. 2d 419, 574 N.W.2d 222 (1998) and Purdy v. Cap Gemini America, Inc., 2001 WI App 270, 248 Wis. 2d 804, 637 N.W.2d 763, give some assistance in identifying the connection between the finality of the merits of the underlying action and how an award of attorney fees fits within the costs permitted when a final judgment is perfected. However, they do not resolve the question of whether an adverse decision on attorney fees may be appealed when a decision on the merits of the claim has not been resolved in a final order.4
*654¶ 53. In Hartman, we examined whether the statutory attorney fees provided under 42 U.S.C. § 1988 to a successful plaintiff on a 42 U.S.C. § 1983 claim came within Wis. Stat. § 806.06(4)'s requirement to tax those fees within 30 days of entry of judgment or forfeit the right to them. Hartman, 216 Wis. 2d 419, ¶ 2. Our decision turned on interpreting the meaning of "costs" in § 806.06(4) to decide whether that term encompassed statutory attorney fees. Id., ¶ 21. By interpreting the meaning of "costs" in Wis. Stat. § 814.04(2), we concluded that "costs" had the same meaning in § 806.06(4). Id., ¶ 26. The § 1988 attorney fees were "costs" within the meaning of § 814.04(2) because they were fees "allowed by law." Id. Therefore, they had to be taxed within 30 days of entry of judgment or they were forfeited. Id., ¶ 36. Query, how can an order on attorney fees be final and taxable if there is no final judgment on which to tax them?
¶ 54. In Purdy, the court of appeals reviewed whether a request for attorney fees based on a provision in Purdy's employment contract was made too late. Purdy, 248 Wis. 2d 804, ¶ 3. When Cap Gemini moved to dismiss Purdy's claim as untimely, the court of appeals affirmed the dismissal, relying on Hartman's interpretation of Wis. Stat. § 806.06(4). Id., ¶¶ 14-15. In so doing, Purdy linked a contractual right to attorney fees to the statutory obligation to perfect costs in 30 days or lose them. There was no discussion of what obligation one might have in regard to attorney fees if there were not a final judgment on the merits of the action when the award of attorney fees was made.
¶ 55. However, other courts have explained that entry of a final order or judgment on the merits is required before an adverse decision on attorney fees can be appealed. Prod. & Maint. Employees' Local 504 v. *655Roadmaster Corp., 954 F.2d 1397, 1401 (7th Cir. 1992) (reasoning that if the underlying decision on the merits of plaintiffs ERISA claim was not final, neither is the decision regarding attorney fees under 29 U.S.C. 1132(g)(1)); Richardson v. Penfold, 900 F.2d 116, 118 (7th Cir. 1990) (concluding that the trial court erred in awarding attorney fees, which award was premature because a judgment on the merits of plaintiffs claim had not been entered); Sandwiches, Inc. v. Wendy's Int'l, Inc., 822 F.2d 707, 711 (7th Cir. 1987) (concluding that the "denial of a request for fees as a 'prevailing party' is not appealable when the merits are not appealable").
¶ 56. The reasoning of Roadmaster, Richardson and Sandwiches is persuasive. They raise my concern about the way in which the majority opinion analyzes the January 19, 2007, decision that denied the firefighters' request for attorney fees.
III. CONCLUSION
¶ 57. The lack of finality of the peremptory writ is sufficient reason to conclude that the January 19, 2007, decision is not a final order denying statutory attorney fees. I would not venture further.
¶ 58. Accordingly, I respectfully concur.
¶ 59. I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this concurrence.
Majority op., ¶ 38.
Id.
See id., ¶¶ 27-28.
The question of whether the decision denying the firefighters' request for attorney fees was an appealable final order before a final order was entered on the merits of their underlying claim was never briefed or argued to us. The firefighters never made the argument that the majority opinion relies upon for its determination: that the January 19, 2007, decision denying the firefighters' motion for statutory attorney fees was not a final order. I do not decide this question in this concurrence.