2015 WI 56
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1715
COMPLETE TITLE: The Journal Times and Steve Lovejoy,
Plaintiffs-Appellants-Cross
Petitioners,
v.
City of Racine Board of Police and Fire
Commissioners,
Defendant-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 354 Wis. 2d 591, 849 N.W.2d 888)
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 67
OPINION FILED: June 18, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 4, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Gerald P. Ptacek
JUSTICES:
CONCURRED: ABRAHAMSON, BRADLEY, J.J., concur. (Opinion
Filed)
DISSENTED:
NOT PARTICIPATING: PROSSER, J. did not participate.
ATTORNEYS:
For the defendants-respondents-petitioners, there were
briefs by Rebecca K. Mason, Racine, and Lauren L. Devine,
University of Wisconsin law student. Oral argument by Rebecca
Mason.
For the plaintiffs-appellants-cross-petitioners, there were
briefs by Robert J. Dreps, Dustin B. Brown, and Godfrey & Kahn,
S.C., Madison. Oral argument by Dustin B. Brown.
An amicus curiae brief was filed by Thomas C. Bellavia,
Assistant Attorney General and Clayton P. Kawski, Assistant
Attorney General with whom on the brief was Brad D. Schimel,
Attorney General, for the Wisconsin Department of Justice.
2
2015 WI 56
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1715
(L.C. No. 2012CV758)
STATE OF WISCONSIN : IN SUPREME COURT
The Journal Times and Steve Lovejoy,
Plaintiffs-Appellants-Cross FILED
Petitioners,
v. JUN 18, 2015
City of Racine Board of Police and Fire Diane M. Fremgen
Clerk of Supreme Court
Commissioners,
Defendant-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
published decision of the court of appeals,1 which reversed the
circuit court's2 order dismissing the mandamus action and
granting summary judgment to the City of Racine Board of Police
and Fire Commissioners ("the Commission").
¶2 The Journal Times of Racine and its editor, Steve
Lovejoy (collectively, "the Newspaper"), commenced this mandamus
1
Journal Times v. City of Racine Bd. of Police & Fire
Comm'rs, 2014 WI App 67, 354 Wis. 2d 591, 849 N.W.2d 888.
2
The Honorable Gerald P. Ptacek, Racine County, presided.
No. 2013AP1715
action under Wis. Stat. § 19.37(1)(a) (2011-12)3 of Wisconsin's
public records law4 after the Commission denied the Newspaper's
request. The request sought information pertaining to a special
meeting that the Commission held in closed session on
February 20, 2012. The Newspaper is no longer seeking
disclosure because the Commission provided the requested
information and is in compliance with the request. The
Newspaper, however, seeks to recover reasonable attorney fees,
damages, and other actual costs under § 19.37(2)(a) because, it
argues, it prevailed "in whole or in substantial part" in this
action. Wis. Stat. § 19.37(2)(a).5
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Wisconsin Stat.
§ 19.37(1)(a) provides:
(1) Mandamus. If an authority withholds a
record or a part of a record or delays granting access
to a record or part of a record after a written
request for disclosure is made, the requester may
pursue either, or both, of the alternatives under
pars. (a) and (b).
(a) The requester may bring an action for
mandamus asking a court to order release of the
record. The court may permit the parties or their
attorneys to have access to the requested record under
restrictions or protective orders as the court deems
appropriate.
4
See Wis. Stat. §§ 19.31 through 19.39. The public records
law is also known as the open records law. We will use the term
"public records law" in order to avoid confusion with the open
meetings law.
5
Wisconsin Stat. § 19.37(2)(a) provides, in pertinent part:
[T]he court shall award reasonable attorney fees,
damages of not less than $100, and other actual costs
2
No. 2013AP1715
¶3 The court of appeals reversed the circuit court's
dismissal of the mandamus action. The Newspaper claims that the
court of appeals erred, however, in remanding the matter to the
circuit court for a determination of whether reasonable attorney
fees, damages, and other actual costs should be awarded. The
Newspaper argues that the award should instead be made as a
matter of law. Both parties petitioned this court for review.
Our analysis of the Newspaper's cross-petition is dispositive of
the issues presented by both parties.
¶4 The Newspaper cross-petitioned this court for review,
seeking to have this court hold that, as a matter of law, the
Newspaper may recover reasonable attorney fees, damages, and
other actual costs because it prevailed in this action "in
substantial part." The Newspaper argues that the Commission's
denial and lack of timely record production equate to violations
of the public records law and open meetings law6 such that the
Newspaper has prevailed in substantial part as a matter of law.
¶5 Specifically, the Newspaper argues that an award under
Wis. Stat. § 19.37(2)(a) is due because the Commission twice
denied the request and misapplied the balancing test for denying
a public records request.7 The Newspaper argues that it filed
to the requester if the requester prevails in whole or
in substantial part in any action filed under sub. (1)
relating to access to a record or part of a record
under s. 19.35 (1)(a).
6
See Wis. Stat. §§ 19.81 through 19.98.
7
See Hathaway v. Joint Sch. Dist. No. 1, City of Green Bay,
116 Wis. 2d 388, 402-03, 342 N.W.2d 682 (1984) (discussing the
3
No. 2013AP1715
this lawsuit to obtain a record that it was led to believe
existed, but to which access was being denied. The Newspaper
also argues that the Commission did not timely respond to the
request and that, when the Commission ultimately filed its
answer to the summons and complaint, it revealed, for the first
time, that a record did not exist.8 The Newspaper argues that,
under Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179
(1979), the Commission is barred from asserting that the record
did not exist. The Newspaper argues that the Commission's
defense in the mandamus action is limited to the written reasons
given in the denial.
¶6 On the other hand, the Commission argues that the
Newspaper did not prevail in substantial part because the
Newspaper, a sophisticated requester, requested information, not
a record. The Commission states that it provided the requested
information even though it was not required to do so under the
public records law. The Commission argues that it could not
have unlawfully denied the request because no record existed at
the time of the request. In short, the Commission argues that
the public records law grants access to records, not
balancing test).
8
"'Record' means any material on which written, drawn,
printed, spoken, visual or electromagnetic information is
recorded or preserved, regardless of physical form or
characteristics, which has been created or is being kept by an
authority." Wis. Stat. § 19.32(2). "'Record' includes, but is
not limited to, handwritten, typed or printed pages, maps,
charts, photographs, films, recordings, tapes (including
computer tapes), computer printouts and optical disks." Id.
4
No. 2013AP1715
information, and that the Newspaper did not prevail in its
lawsuit because a court cannot require release of a record that
does not exist.
¶7 We conclude that under the facts of this case, the
Newspaper did not prevail in substantial part in this action and
is therefore not entitled to reasonable attorney fees, damages,
and other actual costs under Wis. Stat. § 19.37(2), because the
Commission did not unlawfully deny or delay release of the
subject record. Whether the Commission violated the open
meetings law is not properly before the court because the
Newspaper did not request a district attorney to commence an
action under Wis. Stat. § 19.97. Under State ex rel. Blum v.
Board of Education, School District of Johnson Creek, 209
Wis. 2d 377, 565 N.W.2d 140 (Ct. App. 1997), we may consider the
Commission's defense that a responsive record did not exist at
the time of the request even though the Commission first raised
this defense in the mandamus action.
¶8 In other words, the Newspaper is not entitled to its
requested relief because its request is not supported by the
facts of this case or the law. Both parties contributed to any
misunderstanding, if there was one, of what was being requested
and the sufficiency of the responses. In any event, no
responsive record existed at the time of the request and no
record was produced because of the lawsuit. While a records
request need not be made with exacting precision to be deemed a
5
No. 2013AP1715
valid public records request,9 the Newspaper is a requester and
wordsmith with experience and sophistication. Here, the
requests could reasonably be perceived as seeking information,
rather than a record. Although under no obligation to provide
information in response to a records request, the Commission
provided the Newspaper with the answers to its questions by
providing information. Moreover, the subject request cites the
open meetings law. The Commission initially denied the records
requests but later agreed to provide, and did provide, the
requested information. At the time of the request and at the
time that the information was provided, no record existed that
could have been responsive to the request. The Newspaper no
longer seeks production of a record; it seeks only reasonable
attorney fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2)(a). Whether a record should have been in existence
at the time of the request is a matter of the open meetings law,
not public records law. Certainly the Commission cannot avoid a
public records request by failing to timely create a record. In
this case, however, the Commission responded to the Newspaper
with reasonable diligence and released the requested information
while maintaining that it was not legally required to do so and
at a time when no record existed. Neither the facts nor the law
support the conclusion that the Newspaper prevailed in
"substantial part."
9
See ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶¶23,
26, 259 Wis. 2d 276, 655 N.W.2d 510.
6
No. 2013AP1715
I. FACTUAL AND PROCEDURAL BACKGROUND
¶9 The Commission is charged with the responsibility of
hiring police officers and firefighters, including the chiefs of
the City of Racine's police and fire departments. The
Commission consists of five members who are appointed by the
mayor. Its entire budget in 2012 was $23,650.
¶10 The Commission regularly holds only one meeting every
two months. The Commission rarely calls a special meeting.
¶11 The Commission's secretary, Keith Rogers
("Commissioner Rogers"), is primarily responsible for drafting
the Commission meeting minutes. He is a private citizen who
volunteers his time to serve on the Commission. He is not
employed by the City of Racine or its police department. He has
employment in addition to his part-time volunteer position as a
commissioner.
¶12 The Commission has a standard procedure for drafting
and approving meeting minutes. Typically, during a meeting,
Commissioner Rogers takes notes on a template that outlines the
meeting agenda. He typically drafts minutes for a meeting
within one week after that meeting. However, sometimes he
requires more time to draft meeting minutes because of his
regular employment commitments. After he drafts minutes, he
usually sends them to the police chief's secretary, Dianne
Flannery ("Flannery"), for review. Flannery later distributes
the draft minutes to all five commissioners. The Commission
typically reviews the draft minutes for approval at its next
7
No. 2013AP1715
regular meeting, which is held once every other month. The
Commission never approves minutes at a special meeting.
¶13 In May 2011 the City of Racine's police chief, Kurt
Wahlen, retired. Twenty-three people applied for the open
police chief position. The Commission determined that 11
applicants met minimum requirements for the position, and it
selected seven applicants for interviews. Two of those seven
withdrew their names from consideration, so the Commission
interviewed the five finalists.
¶14 By mid-February 2012 the Commission reduced the field
of candidates to three finalists and publicly disclosed their
identities. Two of the three finalists, Lieutenant Carlos Lopez
("Lopez") and Deputy Chief Arthel Howell ("Howell"), were racial
or ethnic minorities and were already employed by the Racine
Police Department. On Friday, February 17, 2012, the third
finalist, Ronald Teachman ("Teachman"), withdrew his name from
consideration. Teachman was not already employed by the Racine
Police Department. The Commission called a special meeting to
be held on the next business day to address Teachman's
withdrawal.
¶15 On Monday, February 20, 2012, the Commission held that
special meeting in closed session. The Commission voted to
reopen the selection process for hiring a new police chief.
Specifically, it voted to determine which of the original 11
applicants who met the minimum requirements were still
8
No. 2013AP1715
interested in the position. The Commission would consider these
interested candidates again.10
¶16 On February 20, 2012, the same day as the special
meeting, the Commission issued a press release. The press
release stated that Teachman withdrew his application for the
police chief position. It further stated that the Commission
"determined that it preferred to have a broader pool of
candidates moving forward. Therefore, the [Commission] has
directed Springsted11 to reengage with other candidates who
applied for the Racine Chief of Police position. City of Racine
Deputy Chief Arthel Howell and Lieutenant Carlos Lopez remain
finalists for the position." The press release did not identify
which commissioners made and seconded the motion to reopen the
selection process for hiring a new police chief. The press
release also did not state how many commissioners, or which
commissioners, voted for or against the motion.
¶17 Also on February 20, the Newspaper published an
article about the Commission's decision to reopen the selection
process for hiring a new police chief. Christine Won ("Won"), a
reporter for the Newspaper, authored the article.
¶18 On Wednesday, February 22, 2012, two days after the
special meeting and press release, Won sent an e-mail to
10
Two days later, on February 22, the Commission held a
special meeting and voted to reverse its decision from the
February 20 special meeting——that is, on February 22 it decided
to pursue only Lopez and Howell for the police chief position.
11
Springsted, Incorporated was the firm hired by the
Commission to assist with finding a new police chief.
9
No. 2013AP1715
Commission President Charles Johnson, Commissioner Rogers, and
Racine Deputy City Attorney Scott Letteney ("Attorney
Letteney"), which stated, in relevant part:
Good morning Chuck, Keith,
I was told to make my open records request
directly to the custodians so am asking you as the
president and secretary of the commission
respectively.
I am officially asking on the record to know the
vote of each commissioner from the closed [Commission]
meeting Monday[, February 20, 2012,] in which they
decided to reopen the police chief search.
If you choose to deny, please provide a written
explanation.
¶19 A few hours after sending that e-mail, Won sent a
clarification e-mail to the same three recipients, which stated:
Chuck, Keith,
Under statute 19.88(3) —— I am asking for the
recorded motions and votes of each PFC Commissioner at
the closed meeting on Monday[, February 20], including
who made the motion and who seconded it.
. . .
I would appreciate this information as soon as
practicable and without delay. If you choose to deny
this request, please provide a written explanation.
¶20 It is undisputed that no record containing the
requested information existed at the time of the requests.
Commissioner Rogers, who would ordinarily be responsible for
taking notes of the meeting on a template, did not attend the
February 20 special meeting but instead appeared remotely via
telephone. He did not have his note-taking template with him
10
No. 2013AP1715
and did not take notes of the meeting as he normally would.12
Accordingly, he did not draft minutes of the meeting. Had he
taken notes and drafted minutes, the Commission in its normal
course of business would have circulated the draft minutes for
approval at its next bi-monthly meeting.13
¶21 On Wednesday, March 7, 2012, Attorney Letteney
responded and denied Won's requests:
On behalf of, and at the direction of, the
[Commission]:
1. Your request for the specific vote of the
[Commission], by member, taken in closed session on
February 20, 2012 is denied. The basis for this
denial is State ex rel. Cities Service Oil Co. v.
Board of Appeals, 21 Wis. 2d 516[,] 124 N.W.2d 809
(1963). In that case, regarding voting in closed
sessions, the Wisconsin Supreme Court held, at page
12
The circuit court record does not explain where
Commissioner Rogers was during the meeting. An interrogatory
question asked the Commission why he did not take notes on this
meeting. The answer stated that "Commissioner Rogers appeared
at the subject February 20 meeting via telephone. He did not
have a copy of his 'minute-taking template' with him at his
remote location." We note that Commissioner Rogers has
employment in addition to his part-time volunteer position on
the Commission. We also note that this February 20 special
meeting was called on short notice.
13
Under the Commission's ordinary course of business, it
would not have reviewed minutes for the February 20 special
meeting until its next regular meeting, which was held on
Monday, March 19, 2012. In fact, the agenda for the March 19
meeting, which was apparently released to the public on
March 12, stated that the Commission planned to approve the
draft minutes for the February 20 special meeting. However, no
draft minutes for the February 20 meeting were created prior to
the March 19 meeting. Thus, the February 20 minutes were
approved at the Commission's next regular meeting, on May 22,
2012.
11
No. 2013AP1715
539, that "voting is an integral part of deliberating
and merely formalizes the result reached in the
deliberating process."
The Newspaper then asked the Commission to reconsider its
decision denying the request.14
¶22 On Friday, March 9, 2012, in another e-mail from
Attorney Letteney to Won, the Commission again denied the
Newspaper's request. This time, the Commission's response
stated that its denial was based on concerns for the safety of
at least one commissioner due to the controversy surrounding the
Commission's decision to reopen the selection process for hiring
a new police chief. This e-mail stated:
The City/[Commission] has a strong, good faith
basis, founded in the law for denying the release of
the vote of the [Commission] from its February 20,
2012 meeting. In addition, upon performing the
required balancing test for the release of records,
there is are [sic] significant public policy bases for
denial of the records.
(A) (Some) commissioner(s) have expressed
reasonable concerns for (his)(her)(their) personal
wellbeing if the specifics of the vote are released.
¶23 The Commission, however, indicated a willingness to
release the "specifics of the vote" within five business days of
hiring a new police chief because the Newspaper had made clear
its desire to have "this information." In particular, the
March 9 e-mail continued:
14
The circuit court record contains an affidavit by Steve
Lovejoy, which states that he directed Won to request that the
Commission reconsider its March 7 response. However, the
contents of this request are not in the circuit court record.
12
No. 2013AP1715
Additionally, as you are aware, there has been a
disproportionate focus on race and an inaccurate
perception that discrimination has played some role in
the decision-making in the police chief selection
process. This has been an unfortunate cloud over the
selection process and has perceptibly affected such
process.
The release of the specifics of the vote at this
time will certainly exacerbate these issues. Despite
this, you have made clear the import to the
[Newspaper] of having this information. Therefore, we
will offer a compromise. The specifics of the February
20 vote will be released to you within five business
days after a new police chief has been hired by the
[Commission].
¶24 On Monday, March 12, 2012, the Newspaper requested
that the "information" be released "immediately" because the
public should "know how the decision" was made. Won wrote to
Attorney Letteney via e-mail: "We are not interested in a
compromise and would like the information immediately. I can
understand [the Commission's] concerns about public perception
but we believe it is in the public's interest to know how the
decision to reopen the search was made." The e-mail concluded:
"We ask you to reconsider our request and let us know [the
Commission's] final response."
¶25 Three days later, on Thursday, March 15, the Newspaper
e-mailed to Attorney Letteney a copy of a draft, unfiled,
summons and complaint alleging that the Commission violated the
public records law. The Newspaper asked the Commission to
stipulate to accept service. Attorney Letteney informed the
Newspaper that the Commission could not accept service and that
service should be made on the city clerk.
13
No. 2013AP1715
¶26 The next day, Friday, March 16, the Newspaper filed
this action in court against the Commission under Wis. Stat.
§ 19.37(1) of the public records law. The Attorney General or a
district attorney did not file an action under the open meetings
law.15
¶27 On Tuesday, March 20, 2012, the Commission unanimously
voted to hire Deputy Chief Howell as Racine's new police chief.
¶28 Two days later, on Thursday, March 22, Attorney
Letteney sent an e-mail to the Newspaper that provided, not a
record, but the information it had requested. The e-mail stated:
At the February 20, 2012 meeting of the
[Commission], the motion was to reopen the search for
a police chief only to the extent to determine whether
the other candidates who applied for the Racine Chief
of Police position and who met the minimum
qualifications, but were not initially asked to
interview, were still interested in the position. The
import of the discussion leading to the motion was a
desire on the part of the Commissioners to compare
external candidates to internal candidates, inasmuch
as the first interview did not include all members of
the [Commission]. Commissioner Van Wanggaard made the
motion. It was seconded by Commissioner Marie Black.
Commissioners Charles Johnson, Black, and Wanggaard
voted in the affirmative. Commissioners Keith Rogers
and Melvin Hargrove voted in the negative.
Minutes of the February 20 motion and vote, however, were still
not drafted or approved.16
15
Before filing an action under the open meetings law, a
private citizen must first request a district attorney to file
an action on behalf of the State. See Wis. Stat. § 19.97(1),
(4). The Newspaper did not follow this procedure.
16
Because the minutes were not drafted before the March 19,
2012 regular meeting, they were drafted shortly before and
approved at the May 22, 2012 regular meeting. See supra note
14
No. 2013AP1715
¶29 The Newspaper did not serve the Commission with this
lawsuit until April 11, 2012, which was 20 days after it
received the requested information. The complaint alleged that
the Commission "violated the [Public] Records Law and Wis. Stat.
§ 19.88(2) by denying the Newspaper's request." Specifically,
the complaint alleged that the Commission's stated reasons for
denying the Newspaper's request were legally insufficient. The
complaint
demand[ed] judgment against the defendant under Wis.
Stat. § 19.37(1):
A. Compelling the defendant to provide the
Newspaper a copy of the requested record;
B. Awarding the plaintiffs their reasonable
attorneys' fees, actual costs and damages under Wis.
Stat. § 19.37(2)[;] and
C. Awarding such other relief as the Court deems
just.
¶30 On May 7, 2012, the Commission filed an answer to the
Newspaper's complaint. In its answer the Commission argued that
the mandamus action was "moot" because the Commission "provided
the information requested to [the Newspaper] within a reasonable
time after the request." One of the Commission's affirmative
defenses was that the mandamus action was "not properly brought
under the Wisconsin Public Records Law, because a 'record,' as
defined by § 19.32(2), Wis. Stats., containing the information
sought has never existed."
13.
15
No. 2013AP1715
¶31 At the time that the Commission filed its answer to
the Newspaper's complaint, no record was yet in existence. The
Commission had not drafted minutes for the February 20 special
meeting prior to its regular meeting on March 19 but it had
drafted minutes before its next regular meeting on May 22.
Specifically, on or about May 21, 2012, Attorney Letteney sent
proposed language for February 20 meeting minutes to the police
chief's secretary, Dianne Flannery. However, Attorney Letteney
did not draft any minutes. Instead, on May 21 Flannery drafted
minutes for the February 20 meeting. After Commissioner Rogers
approved Flannery's draft minutes, Flannery sent the draft
minutes to the five commissioners via e-mail. She did not send
the draft minutes to Attorney Letteney. The next day, May 22,
the Commission approved the minutes at its regular, bi-monthly
meeting.
¶32 On September 13, 2012, the Newspaper filed a motion
for summary judgment in the lawsuit. In a brief supporting the
motion, the Newspaper clarified that it was seeking disclosure
of a record——specifically, meeting minutes. The Newspaper
argued that, "[a]lthough the Newspaper does not question the
accuracy of the information provided by Mr. Letteney, his e-mail
does not satisfy its public records request. . . . The
[Commission] has never provided to the Newspaper the minutes of
its February 20 meeting." On October 3, 2012, the Commission
filed a brief opposing the Newspaper's motion for summary
judgment.
16
No. 2013AP1715
¶33 On October 25, 2012, the circuit court held a hearing
on the Newspaper's motion for summary judgment. At the hearing,
Attorney Letteney, unaware that draft minutes were circulated to
the Commission on May 21, stated that he has "never seen minutes
for [the February 20, 2012] meeting." He further stated, "I
don't think it's reasonable to anticipate that two days after a
meeting a newspaper reporter that understands the process of
minutes being taken, minutes being posted, minutes being
approved should actually believe that a record actually exists
two days after a meeting . . . ." He concluded that "if the
[Newspaper] wins this motion, there is still no record to give
them." The circuit court denied the motion. The court stated
that it was "not satisfied on this record the Court can find
that there has been a prima facie case made out that there are
documents that exist here." "There's no fact asserting that
minutes——draft minutes were created or that minutes themselves
were created, and thus, to grant the motion for summary judgment
would yield potentially an order of the Court that would produce
nothing and have no meaningful effect." The court allowed the
case to proceed for more discovery.17
¶34 On December 3, 2012, Attorney Letteney sent a letter
to the circuit court and to the Newspaper's counsel. The letter
reiterated that Attorney Letteney was previously "unaware of the
existence of any minutes for [the February 20, 2012] meeting."
17
On January 9, 2013, Commissioner Rogers answered
interrogatories submitted by the Newspaper. He was previously
deposed on June 18, 2012.
17
No. 2013AP1715
However, he explained that sometime after the October 25 hearing
he learned that the police chief's secretary, on May 21,
circulated draft minutes for the February 20 meeting to the
commissioners. The letter further explained that Attorney
Letteney "provided [a] copy of such draft minutes to [the
Newspaper's counsel]." The February 20 meeting minutes that
were sent to the Newspaper's counsel were almost verbatim with
the information that the Commission e-mailed to the Newspaper on
March 22.18 The letter emphasized that "the draft minutes did
not exist on February 22, 2012, the date the public records
request at issue was made." The letter further emphasized that
the approved minutes for the February 20 special meeting had not
yet been published on the City of Racine's Web site.19
¶35 On March 22, 2013, the Commission filed a motion for
summary judgment. Three days later, the Newspaper filed a
renewed motion for summary judgment.
¶36 On April 22, 2013, the circuit court held a hearing on
those two motions. The circuit court found that no responsive
18
The minutes read:
Reopening the Police Chief recruitment to the
extent of those applicants who were qualified, but not
previously granted interviews, approved on a motion by
Commissioner Wanggaard and seconded by Commissioner
Black. Motion carried three to two, with
Commissioners Johnson, Wanggaard, and Black voting in
the affirmative, and Commissioners Hargrove and Rogers
voting in the negative.
19
The circuit court record does not indicate when the
February 20 minutes were published on the city's Web site.
18
No. 2013AP1715
record existed at the time of the Newspaper's request. In
particular, it found that "it's not disputed I guess that at the
time the demand was made there wasn't any written recording to
be supplied to the City [sic] pursuant to their request."
Further, "the minutes of February 20th . . . were never approved
until the Commission's May 22nd meeting . . . ."
¶37 The circuit court also found that "it's clear the City
hadn't or didn't know exactly what had happened at the
[February 20, 2012] meeting with respect to minutes . . . ."
The court found that:
[I]n this case I think the issue on the part of the
[Newspaper] is created by the lack of knowledge on the
part of the governmental entity to know exactly what
was happening in a committee that was meeting to
discuss the hiring of a chief of police and the way it
did or did not keep its records, and that's why this
case in its instance had to lead to a process to
discover whether there was a record that existed or
not. It wasn't known . . . .
¶38 At the end of the hearing, the circuit court denied
the Newspaper's motion for summary judgment, granted the
Commission's motion for summary judgment, and dismissed the
action.20 After an in-depth discussion of State ex rel.
Zinngrabe v. School District of Sevastopol, 146 Wis. 2d 629, 431
N.W.2d 734 (Ct. App. 1988), the circuit court stated that
Zinngrabe "is controlling and on point here." The circuit court
concluded, based on Zinngrabe, that it was "not satisfied that
the pleadings which were couched in terms of [public] records
20
On May 2, 2013, the circuit court entered a written order
to that effect.
19
No. 2013AP1715
law allow us to reach the issue about . . . the open meetings
law."
¶39 On May 28, 2014, the court of appeals reversed the
circuit court's order and "remand[ed] solely for a determination
of whether the Newspaper is entitled to attorney fees and
costs." Journal Times v. City of Racine Bd. of Police & Fire
Comm'rs, 2014 WI App 67, ¶2, 354 Wis. 2d 591, 849 N.W.2d 888.
The court of appeals held that, although "the Newspaper's record
request became moot when the Commission provided the
information," the action should not be dismissed because "[t]he
Newspaper still has a viable claim for attorney fees and costs
if the litigation 'was a cause, not the cause' of the
Commission's March 22 release." Id., ¶11 (citation omitted).
The court of appeals held "that the Commission is estopped from
arguing that a record of the vote did not exist."21 Id., ¶12.
¶40 On June 17, 2014, the Newspaper filed a motion for
reconsideration, asserting that it was entitled to reasonable
attorney fees, damages, and other actual costs as a matter of
law because it "prevailed" "in substantial part" in the mandamus
action. On June 20, 2014, the court of appeals denied the
motion for reconsideration.
21
In its response brief, the Newspaper states that it
"agrees with the [Commission] that the court of appeals should
not have applied equitable estoppel here." The Newspaper argues
that we should rely on Newspapers, Inc. v. Breier, 89
Wis. 2d 417, 279 N.W.2d 179 (1979), instead of equitable
estoppel, to bar the Commission from raising its defense that no
record existed. Thus, we do not address equitable estoppel.
20
No. 2013AP1715
¶41 On July 21, 2014, the Commission filed a petition for
review. On August 20, 2014, the Newspaper filed a cross-
petition for review. On November 14, 2014, we granted the
petition and cross-petition for review.
II. STANDARD OF REVIEW
¶42 "Interpretation of our own case law presents a
question of law that we review de novo." State v. Walker, 2008
WI 34, ¶13, 308 Wis. 2d 666, 747 N.W.2d 673 (citation omitted).
"We independently review whether the circuit court correctly
granted summary judgment" to the Commission. Stoker v.
Milwaukee Cnty., 2014 WI 130, ¶16, 359 Wis. 2d 347, 857
N.W.2d 102 (citation omitted). "Summary judgment 'shall be
rendered if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.'" Id. (quoting Wis. Stat.
§ 802.08(2)). "'Statutory interpretation and application
present questions of law that we review de novo while benefiting
from the analyses of the court of appeals and circuit court.'"
118th St. Kenosha, LLC v. DOT, 2014 WI 125, ¶19, 359 Wis. 2d 30,
856 N.W.2d 486 (quoting 260 N. 12th St., LLC v. DOT, 2011 WI
103, ¶39, 338 Wis. 2d 34, 808 N.W.2d 372).
¶43 "[S]tatutory interpretation 'begins with the language
of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
21
No. 2013AP1715
N.W.2d 110 (quoted source and citations omitted). "Statutory
language is given its common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases are
given their technical or special definitional meaning." Id.
(citations omitted).
III. ANALYSIS
¶44 At the outset, we recognize that the Newspaper's
action was brought under the public records law rather than the
open meetings law. Thus, we do not determine whether the
Commission's practices comport with the open meetings law. In
our analysis we focus on whether the Newspaper prevailed in this
action in substantial part, entitling it to reasonable attorney
fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2)(a) of the public records law. In doing so, we first
discuss general principles concerning public access to
governmental records. Second, we outline the parties'
arguments. Third, we analyze whether the Commission is barred
from raising its affirmative defense that no responsive record
existed at the time of the Newspaper's requests. Fourth, we
review the Newspaper's requests and the Commission's responses.
Finally, we evaluate precedent to determine whether the
Commission exercised reasonable diligence in responding to the
requests. Ultimately, we conclude that the Newspaper's
requested relief is supported neither by the facts of this case
nor by legal precedent.
A. Public Access
22
No. 2013AP1715
¶45 The public records law and open meetings law are
fundamental concepts in our state's history of transparent
government. See State ex rel. Auchinleck v. Town of LaGrange,
200 Wis. 2d 585, 597, 547 N.W.2d 587 (1996); Schill v. Wisconsin
Rapids Sch. Dist., 2010 WI 86, ¶¶1-3, 327 Wis. 2d 572, 786
N.W.2d 177. These laws were enacted to promote public access to
actions of governmental bodies. See Watton v. Hegerty, 2008 WI
74, ¶¶9-10, 311 Wis. 2d 52, 751 N.W.2d 369. Wisconsin's public
records law states that "it is declared to be the public policy
of this state that all persons are entitled to the greatest
possible information regarding the affairs of government and the
official acts of those officers and employees who represent
them." Wis. Stat. § 19.31. "[T]he clearly stated, general
presumption of our law is that all public records shall be open
to the public." Linzmeyer v. Forcey, 2002 WI 84, ¶15, 254
Wis. 2d 306, 646 N.W.2d 811 (citation omitted). "This
presumption reflects the basic principle that the people must be
informed about the workings of their government and that
openness in government is essential to maintain the strength of
our democratic society." Id. (citation omitted). Similarly,
Wisconsin's open meetings law states that "it is declared to be
the policy of this state that the public is entitled to the
fullest and most complete information regarding the affairs of
government as is compatible with the conduct of governmental
business." Wis. Stat. § 19.81(1).
¶46 Despite their similar purposes, the public records law
and open meetings law have differences and are not without
23
No. 2013AP1715
limits. The legislature enacted different avenues of
enforcement for these two laws. The public records law's plain
language allows an individual to initiate a lawsuit to enforce a
records request but the statute does not similarly authorize an
individual to initiate a lawsuit to enforce the open meetings
law. Specifically, the public records law provides that, "[i]f
an authority withholds a record or a part of a record or delays
granting access to a record or part of a record after a written
request for disclosure is made," "[t]he requester may bring an
action for mandamus asking a court to order release of the
record." Wis. Stat. § 19.37(1)(a).
¶47 By contrast, the open meetings law "shall be enforced
in the name and on behalf of the state by the attorney general
or, upon the verified complaint of any person, by the district
attorney of any county wherein a violation may occur." Wis.
Stat. § 19.97(1). "If the district attorney refuses or
otherwise fails to commence an action to enforce this subchapter
within 20 days after receiving a verified complaint, the person
making such complaint may bring an action under subs. (1) to (3)
on his or her relation in the name, and on behalf, of the
state." Wis. Stat. § 19.97(4).
¶48 The open meetings and public records laws become
somewhat intertwined in this case because the Newspaper argues,
in part, that the public records law was violated because the
Commission violated the open meetings law. The Newspaper argues
that "Wis. Stat. § 19.88(3) [of the open meetings law] required
the [Commission] to record and disclose the information the
24
No. 2013AP1715
Newspaper requested." Section 19.88(3) states that "[t]he
motions and roll call votes of each meeting of a governmental
body shall be recorded, preserved and open to public inspection
to the extent prescribed in subch. II of ch. 19." Wis. Stat.
§ 19.88(3). Subchapter II includes the public records law. The
Newspaper urges this court to "hold that the legislature
intended the duties imposed by § 19.88(3) to be enforced under
the [Public] Records Law."
¶49 The Commission, relying on Zinngrabe, 146 Wis. 2d 629,
argues that we cannot consider whether it complied with the open
meetings law, because this lawsuit was filed under the public
records law. Further, the Commission argues that it did not
violate the open meetings law. It argues that it was not
required under Wis. Stat. § 19.88(3) of the open meetings law to
create a record of the commissioners' individual votes at the
February 20, 2012 special meeting. The Commission reasons that
§ 19.88(3) requires "roll call votes" to be recorded, but the
Commission used voice votes, not roll call votes, at the
February 20 special meeting. The Commission also argues that it
was not required under § 19.88(3) to record the motion at that
meeting. Even if § 19.88(3) required the Commission to record
the motion and individual commissioners' votes at the
February 20 special meeting, the Commission argues, "this
[statute] does not obligate a public body to 'immediately' make
a record of any such motions or votes."
¶50 We turn to Zinngrabe. Donald Zinngrabe filed a public
records request with the Sevastopol School District seeking to
25
No. 2013AP1715
inspect minutes from several school board closed meetings.
Zinngrabe, 146 Wis. 2d at 630-31. After being told that the
requested records did not exist, he filed a mandamus action,
seeking "a writ of mandamus, punitive damages, and other costs
under the [public] records law . . . ." Id. at 630. He argued
that he could seek relief under the public records law for the
school board's failure to maintain records of its closed
meetings as allegedly required by Wis. Stat. §§ 120.11(1) and
120.17(3) (1985-86). Id. at 634. The court of appeals rejected
that argument, explaining that:
Zinngrabe essentially argues that the board is
attempting to defeat the provisions of the [public]
records law by not keeping records that it is directed
by statute to maintain. Zinngrabe's claim for relief,
however, assumes that the board's alleged failure to
keep minutes can be attacked under the [public]
records law. We disagree with this premise and,
accordingly, need not address the issue of whether and
to what extent minutes must be maintained by the
school board clerk.
Id. at 634-35.
¶51 Consistent with Zinngrabe, the Newspaper cannot seek
relief under the public records law for the Commission's alleged
violation of the open meetings law. It is undisputed that the
Newspaper filed this action under the public records law and did
not follow the procedures to pursue an action under the open
meetings law. Thus, we do not address whether an open meetings
law violation occurred. In this public records law mandamus
action, the Newspaper cannot recover reasonable attorney fees,
damages, and other actual costs under Wis. Stat. § 19.37(2) for
26
No. 2013AP1715
an alleged violation of the open meetings law. See id. at 634-
35; 118th St. Kenosha, LLC, 359 Wis. 2d 30, ¶33 (Even if
"damages . . . are compensable under a particular statute, those
damages cannot be recovered in a claim brought under the wrong
statute.").
¶52 The Newspaper's contrary arguments do not persuade us
to hold otherwise. The Newspaper contends that the open
meetings law's "enforcement provisions are ill-suited to serve
the legislature's declared purpose to ensure timely public
access to government affairs." However, the legislature
mandated significant differences between the two laws'
enforcement provisions. See Auchinleck, 200 Wis. 2d at 592-93.
If the Newspaper seeks change in the statutory provisions, it
must direct those concerns to the legislature. "[A]ddressing
those concerns is a legislative function, not a function
properly undertaken by the courts." Milwaukee Journal Sentinel
v. City of Milwaukee, 2012 WI 65, ¶83, 341 Wis. 2d 607, 815
N.W.2d 367 (Roggensack, J., concurring for a majority of the
court). We also disagree with the Newspaper's argument that
"Wis. Stat. § 19.88(3) . . . implicitly incorporates [the public
records law's] enforcement measures." Were we to hold
otherwise, we would effectively nullify the enforcement
provisions that the legislature included in the open meetings
law. See Wis. Stat. § 19.97; Auchinleck, 200 Wis. 2d at 592-93.
B. Did the Newspaper Prevail in Substantial Part?
¶53 The crux of the issue before the court is whether the
Newspaper prevailed in substantial part in this action so to
27
No. 2013AP1715
entitle it to reasonable attorney fees, damages, and other
actual costs under Wis. Stat. § 19.37(2)(a).
¶54 We conclude that under the facts of this case, the
Newspaper did not prevail in substantial part in this action and
is therefore not entitled to reasonable attorney fees, damages,
and other actual costs under Wis. Stat. § 19.37(2), because the
Commission did not unlawfully deny or delay release of the
subject record. In other words, the Newspaper is not entitled
to its requested relief because its request is not supported by
the facts of this case or the law. Both parties contributed to
the misunderstanding, if there was any, of what was being
requested and the sufficiency of the responses. In any event,
no responsive record existed at the time of the request and no
record was produced because of the lawsuit. While a records
request need not be made with exacting precision to be deemed a
valid public records request,22 the Newspaper is a requester and
wordsmith with experience and sophistication. Here, the
requests could reasonably be perceived as seeking information,
rather than a record. Moreover, the request cites the open
meetings law. The Commission initially denied the requests but
later agreed to provide, and did provide, responsive
information. At the time of the request and at the time that
the information was provided, no record existed that could have
been responsive to the request. The Commission was not required
to provide information in response to a records request. The
22
See ECO, Inc., 259 Wis. 2d 276, ¶¶23, 26.
28
No. 2013AP1715
Newspaper no longer seeks production of a record; it seeks only
reasonable attorney fees, damages, and other actual costs under
§ 19.37(2)(a). Whether a record should have been in existence
at the time of the request is a matter of the open meetings law,
not public records law. Certainly the Commission cannot avoid a
public records request by failing to timely create a record. In
this case, however, the Commission responded to the Newspaper
with reasonable diligence and released the requested information
while maintaining that it was not legally required to do so and
at a time when no record existed. As will be discussed, neither
the facts nor the law support the conclusion that the Newspaper
prevailed in "substantial part."23
1. Public Records Law
¶55 The public records law "is designed to make existing
records available to the public unless withholding such
documents is specifically authorized by law." State ex rel.
Gehl v. Connors, 2007 WI App 238, ¶13, 306 Wis. 2d 247, 742
N.W.2d 530 (emphasis added) (citing Zinngrabe, 146 Wis. 2d at
633). However, "the public records law does not require an
23
The Newspaper cross-petitioned this court for review,
seeking to have us create a new test for recovery of reasonable
attorney fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2). It argues that "[t]his Court should hold that when
a custodian abandons its stated reasons for denial, it has no
defense at all and the requester necessarily has prevailed 'in
substantial part' under Wis. Stat. § 19.37(2)." We decline to
adopt this proposed test in the present case. As we will
explain, the Commission has a valid defense for denying the
Newspaper's request: no record containing the requested
information existed.
29
No. 2013AP1715
authority to provide requested information if no record exists,
or to simply answer questions about a topic of interest to the
requester." Wis. Dep't of Justice, Wisconsin Public Records
Law, Compliance Outline, at 18 (Sept. 2012), available at
http://www.doj.state.wi.us/sites/default/files/dls/public-
records-compliance-outline-2012.pdf.24 See also Zinngrabe, 146
Wis. 2d at 635; George v. Record Custodian, 169 Wis. 2d 573,
579, 485 N.W.2d 460 (Ct. App. 1992) ("The [public] records law
does not require the custodian to . . . create a record for the
benefit of a requester."). While a record will always contain
information, information may not always be in the form of a
record.
¶56 "Each authority, upon request for any record, shall,
as soon as practicable and without delay, either fill the
request or notify the requester of the authority's determination
to deny the request in whole or in part and the reasons
therefor." Wis. Stat. § 19.35(4)(a). "For purposes of the
production of public records under Wis. Stat. § 19.35(4)(a), the
statutory language 'as soon as practicable' implies a reasonable
time for response . . . ." Watton v. Hegerty, 2007 WI App 267,
¶36, 306 Wis. 2d 542, 744 N.W.2d 619, rev'd on other grounds,
2008 WI 74, 311 Wis. 2d 52, 751 N.W.2d 369. See also Milwaukee
Journal Sentinel, 341 Wis. 2d 607, ¶56 & n.31 (explaining that
24
See also Wis. Stat. § 19.39 ("Any person may request
advice from the attorney general as to the applicability of this
subchapter under any circumstances. The attorney general may
respond to such a request.").
30
No. 2013AP1715
§ 19.35(4)(a) allows a reasonable time for a response). "[W]hat
constitutes a reasonable time for a response by an authority
depends on the nature of the request, the staff and other
resources available to the authority to process the request, the
extent of the request, and other related considerations."
WIREdata, Inc. v. Vill. of Sussex, 2008 WI 69, ¶56, 310
Wis. 2d 397, 751 N.W.2d 736 (internal quotation marks omitted).
"Accordingly, whether an authority is acting with reasonable
diligence in a particular case will depend upon the totality of
the circumstances surrounding the particular request." Id.
¶57 The public records law provides a requester with the
ability to enforce a public records request in a mandamus
action. Wis. Stat. § 19.37(1). A requester who prevails "in
substantial part" in such an action is entitled to "reasonable
attorney fees, damages of not less than $100, and other actual
costs . . . ." Wis. Stat. § 19.37(2)(a). However, "[i]f the
failure to timely respond to a request was caused by an
unavoidable delay accompanied by due diligence in the
administrative processes, . . . the plaintiff has not
substantially prevailed." Racine Educ. Ass'n v. Bd. of Educ.
for Racine Unified Sch. Dist., 145 Wis. 2d 518, 524, 427
N.W.2d 414 (Ct. App. 1988) ("Racine Educ. Ass'n II") (citing
Racine Educ. Ass'n v. Bd. of Educ. for Racine Unified Sch.
Dist., 129 Wis. 2d 319, 327, 385 N.W.2d 510 (Ct. App. 1986)
("Racine Educ. Ass'n I")). Stated differently, if a custodian
acts with reasonable diligence, a requester is not entitled to
31
No. 2013AP1715
reasonable attorney fees, damages, and other actual costs under
§ 19.37(2) on grounds of unlawful delay. See id. at 524-25.
2. The Parties' Arguments
¶58 The Newspaper argues that it filed this lawsuit to
obtain a record that it was led to believe existed, but to which
access was being denied. The Newspaper asserts that under
Breier, 89 Wis. 2d 417, the Commission is limited to defending
on the reasons it gave for denying access and is precluded from
explaining that no record existed. The Newspaper argues that
because the Commission no longer relies on the reasons that it
originally provided for denying the Newspaper's request,
reasonable attorney fees, damages, and other actual costs must
be awarded as a matter of law.
¶59 The Newspaper further argues that it prevailed in
substantial part because the Commission did not respond and
provide the requested information "as soon as practicable and
without delay," as required by Wis. Stat. § 19.35(4)(a).25 The
Newspaper is not still seeking a record. Instead, the
Newspaper's argument focuses on the timing of the response,
contending that "[t]he [Commission's] initial response, coming
nearly two weeks after the request, was hardly 'as soon as
practicable and without delay.'" Similarly, the Newspaper
contends that it "was entitled to the information when the
25
Relying on an attorney general opinion, the Newspaper
argues that a "24-hour delay" is illegal under the public
records law. See 67 Wis. Op. Att'y Gen. 117, 119-20 (1978) (OAG
24-78) ("I am not aware of any sufficient reason to justify a
24-hour delay.").
32
No. 2013AP1715
Newspaper first requested its production, not a month later when
the [Commission] actually disclosed it." The Newspaper accuses
the Commission of "deliberate failure to create the record" and
"strategically delaying disclosure" "for an illicit
purpose, . . . to shield public officials from public
accountability for their official actions." The Newspaper urges
this court to "hold it is entitled to recover damages for that
delay, along with reasonable attorney fees and costs, under Wis.
Stat. § 19.37(2)."
¶60 On the other hand, the Commission argues that the
Newspaper did not prevail in substantial part because the
Commission acted reasonably. Foremost, the Commission argues
that it could not be required to produce a record that did not
exist at the time of the request. No record existed until the
end of May 2012. The lawsuit was filed about two months
earlier, in March 2012. The Commission argues that we may
consider its affirmative defense——that no record responsive to
the Newspaper's request existed at the time of the request——
because this defense is based on a statutory exception to the
public records law. According to the Commission, the court of
appeals in Blum, 209 Wis. 2d 377, clarified that Breier does not
prevent a court from considering whether a requested record is
statutorily exempt from disclosure under the public records law,
even if the statutory exemption was not mentioned in a
custodian's response to a public records request.
¶61 The Commission further argues that even though no
record existed and it was not required to provide information,
33
No. 2013AP1715
it acted reasonably and provided the information requested by
the Newspaper. The Commission argues that it reasonably
believed that the Newspaper was requesting information, not a
record, and that it did not actively mislead the Newspaper into
believing that a record existed. The Commission emphasizes that
the Newspaper's requests were ambiguous and that the Newspaper
could not reasonably have thought that meeting minutes existed
only two days after the meeting at issue. The Commission also
argues that it responded to the requests for information in a
timely manner. It argues that "[n]either the Public Records Law
nor the Open Meetings Law requires it to create a record earlier
than it would in the regular course of its business for the
purpose of responding to a [public] records request." The
Commission argues that "there is no requirement in the law that
the [Commission] create the record immediately." According to
the Commission, the Newspaper's accusation that the Commission
deliberately failed to create a record "to shield [its members]
from accountability for their official actions" is
"preposterous." The Commission argues that it created and
approved the meeting minutes at issue according to its regular
course of business and that a "clerical error" slightly delayed
their creation. The Commission argues that "[t]hese facts do
not support a conclusion that the [Commission] was covering up
its 'failure' to create these minutes earlier."
3. Breier and Blum
¶62 The Newspaper argues that Breier bars the Commission
from raising a defense that no responsive record existed at the
34
No. 2013AP1715
time of the Newspaper's request. The Commission argues that,
under Blum, it may assert that defense although it did not raise
that defense before the Newspaper filed the mandamus action.
¶63 In Breier The Milwaukee Journal requested that the
Milwaukee Police Department disclose daily arrest records,
including the charges upon which persons were arrested. Breier,
89 Wis. 2d at 420-21. The police department refused to disclose
records of the charges, so The Milwaukee Journal brought a
mandamus action seeking an order compelling disclosure of those
records. Id. at 421-22. The Breier court stated:
The duty of the custodian is to specify reasons for
nondisclosure and the court's role is to decide
whether the reasons asserted are sufficient. It is
not the trial court's or this court's role to
hypothesize reasons or to consider reasons for not
allowing inspection which were not asserted by the
custodian.
Id.
¶64 Unlike the case at issue, in Breier the requested
records existed at the time of the request. The police
department denied the public records request for public policy
reasons in order to protect the arrested individuals from
"possible personal and economic harm." Id. at 421. This court
held "as a matter of law that the harm to the public interest in
the form of possible damage to arrested persons' reputations
does not outweigh the public interest in allowing inspection of
the police records which show the charges upon which arrests
were made." Id. at 440. Accordingly, this court remanded for
the circuit court to issue a writ of mandamus compelling
35
No. 2013AP1715
disclosure of the requested records. Id. In the present case,
the circuit court could not have ordered that relief at the time
the lawsuit was commenced because no record existed then, and in
the Commission's ordinary course of business a record would not
have existed until the next regular meeting in late March.
¶65 Thus, Breier will sometimes prohibit a court from
considering reasons for denying a public records request that
were not asserted by a custodian prior to the commencement of a
mandamus action. See Oshkosh Nw. Co. v. Oshkosh Library Bd.,
125 Wis. 2d 480, 484, 373 N.W.2d 459 (Ct. App. 1985) ("Where
inspection is denied, it is the custodian, not the attorney
representing the governmental body after a mandamus action is
commenced, who must give specific and sufficient reasons for
denying inspection."). But Breier does not always require that
prohibition, especially if no record exists.
¶66 In Blum a student, Elizabeth Blum, filed a public
records request with the Johnson Creek Board of Education.
Blum, 209 Wis. 2d at 379. The request sought records indicating
the interim grades of a student who received a scholarship over
Blum. Id. The board denied the request, stating that
calculating interim grades would be burdensome and that interim
grades were immaterial for determining the recipient of the
scholarship. Id. at 380. Blum then filed a mandamus action to
compel the board to disclose the requested records. Id.
¶67 The court of appeals affirmed the circuit court's
order denying Blum's mandamus petition. Id. at 380, 391-92.
The court of appeals held that Wis. Stat. § 118.125, which
36
No. 2013AP1715
states that pupil records maintained by a public school are
confidential, exempted the requested records from disclosure
under the public records law. Id. at 385. "[U]nless there
exists: (1) a 'clear statutory exception'; (2) a common law
limitation; or (3) an overriding public interest in keeping the
record confidential, the information sought must be disclosed."
Id. at 383 (quoting Hathaway v. Joint Sch. Dist. No. 1, City of
Green Bay, 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984)). The
court of appeals concluded that § 118.125 was a clear statutory
exception to disclosure. Id. at 385.
¶68 The court of appeals rejected Blum's argument that,
because the board did not rely on Wis. Stat. § 118.125 in its
response to her public records request, Breier forbade the court
from considering whether that statute exempted the requested
records from disclosure. Id. at 391-92. Because the board
relied on § 118.125 in its response to the mandamus petition,
"[t]he trial court thus was not required to 'hypothesize' the
applicable statutory exception," which would have been
prohibited under Breier. See id. at 388 n.6. The court of
appeals concluded, "the Board's insufficient denial letter to
Blum does not prevent a court from determining whether a 'clear
statutory exception' applies to the requested interim grades."
Id. at 388.
¶69 Thus, under Blum, Breier does not prohibit a court
from considering whether a requested record is statutorily
exempt from disclosure under the public records law, even if a
37
No. 2013AP1715
custodian did not assert the statutory exemption prior to the
commencement of a mandamus action.
¶70 The Newspaper urges this court to rely on Breier and
conclude that it has prevailed in substantial part. The
Newspaper argues that Breier requires a custodian to be specific
in its response to a public records request so that a requester
can challenge the response and so a court can review the
sufficiency of the response. The Newspaper contends that the
Commission "actively misled the newspaper into believing that it
had created a record of the motion at issue," only to assert
that no record existed after the mandamus action was filed. The
Newspaper argues that, had it known that no record existed, it
would have filed suit under the open meetings law instead of the
public records law.
¶71 The Commission urges us to rely on Blum and thus allow
it to raise its affirmative defense that no responsive record
existed at the time of the Newspaper's request. It argues that
a record's non-existence provides a clear statutory exception to
disclosure under the public records law. The Commission reasons
that the public records law does not require the creation of a
record or the release of a record that does not exist. The
Commission further argues that "there is no evidence . . . that
the [Commission] purposefully or maliciously misled the
Newspaper" into believing that a record existed. Rather, the
Commission argues that it mistakenly believed that the Newspaper
was requesting information, not records, and that the "lack of
clarity" of the Newspaper's requests "resulted in confusion."
38
No. 2013AP1715
¶72 To determine whether the Commission may assert its
affirmative defense that no responsive record existed at the
time of the Newspaper's request, we will determine whether a
requested record's non-existence provides a "clear statutory
exception" to disclosure under the public records law. See
Blum, 209 Wis. 2d at 388. "The [public] records law affords the
right to inspect and make or receive a copy of a 'record.'"
George, 169 Wis. 2d at 579 (quoting Wis. Stat. § 19.35(1)(b)).
Wisconsin Stat. § 19.35(1)(a) states that, "[e]xcept as
otherwise provided by law, any requester has a right to inspect
any record." Wis. Stat. § 19.35(1)(a) (emphasis added).
Similarly, § 19.35(1)(b) states that, "[e]xcept as otherwise
provided by law, any requester has a right to inspect a record
and to make or receive a copy of a record." Wis. Stat.
§ 19.35(1)(b) (emphases added).
¶73 Accordingly, the public records law provides neither a
right to inspect nor a duty to disclose a non-existent record.
See George, 169 Wis. 2d at 579 (holding that "[a] non-existent
record cannot be inspected or copied" and "[t]he [public]
records law does not require the custodian to . . . create a
record for the benefit of a requester."). A governmental entity
may not circumvent disclosure of a record by failing to create a
record that it is legally required to create. However, the
public records law does not require the government to create a
record or release a non-existent record. The public records law
"is designed to make existing records available to the public
unless withholding such documents is specifically authorized by
39
No. 2013AP1715
law." Gehl, 306 Wis. 2d 247, ¶13 (emphasis added) (citing
Zinngrabe, 146 Wis. 2d at 633). See also Compliance Outline,
supra, at 18 ("The public records law provides access to
existing records maintained by authorities."). Thus, "[t]he
public records law does not require an authority to provide
requested information if no record exists . . . ." Compliance
Outline, supra, at 18. In short, a record's non-existence
provides a clear statutory exception to disclosure under the
public records law.
¶74 We are not persuaded by the Newspaper's argument that
Blum applies only to a confidentiality-based clear statutory
exception to disclosure. The court of appeals in Blum held that
it may consider a "clear statutory exception" to disclosure,
although the custodian did not rely on the exception in its
response to a public records request. Blum, 209 Wis. 2d at 387-
88. Although the court discussed a confidentiality statute, it
did so because that kind of statute was at issue in that case.
The court did not suggest that its holding was limited to
confidentiality-based statutory exceptions. Further, in Breier,
the court did not address the issue of whether a custodian could
assert a statutory exception, such as a record's non-existence,
for the first time after a mandamus action has been filed.
¶75 We are also not persuaded by the Newspaper's argument
that the Commission's affirmative defense is barred because the
Commission, by failing to disclose that no record existed,
hindered both the Newspaper's ability to prepare a challenge and
a court's ability to review the sufficiency of the Commission's
40
No. 2013AP1715
denial. Accepting this argument would require us to overturn
Blum, which we are unwilling to do. In fact, the court of
appeals in Blum rejected the same argument. See id. at 386-88.
The court of appeals in Blum explained that Breier requires
custodians to be specific in their responses to public records
requests so that courts can review the sufficiency of the
responses. Id. at 386-87. However, if "the information
requested is specifically exempted by statute from disclosure,"
the legislature has already determined that the information need
not be disclosed. Id. at 387. "[A] reviewing court's de novo
determination whether certain information is statutorily
exempted from disclosure is not aided by anything a custodian
might say in a denial letter, nor is it deterred by the
custodian's silence." Id. at 387-88. In the present case,
although the Commission's responses did not state that no record
existed, that omission does not impair our ability to determine
whether a statutory exemption to disclosure applies.26
¶76 We conclude that under the circumstances presented,
this court may consider whether a record existed when the public
records request was made, even though the custodian's response
26
We also disagree with the Newspaper's argument that we
should ignore the Commission's affirmative defense because the
Commission actively misled the Newspaper into believing that a
record existed. There is no evidence that the Commission
actively misled the Newspaper. The Commission did not know
whether a responsive record existed when it responded to the
requests. In addition to the fact that no record existed that
could be produced, the Commission acted reasonably in responding
to what it deemed to be a request for information.
41
No. 2013AP1715
to the request did not specifically state that the record did
not exist. See id. at 388 (holding that a court may consider a
clear statutory exception to disclosure even if a custodian did
not rely on that exception in its response to a public records
request). Based on the foregoing discussion, the Commission
lawfully denied the Newspaper's request because no responsive
record existed at the time of the request.
4. The Requests and Responses
¶77 What complicates and also clarifies this case is that
each party may have made mistakes that exacerbated confusion
regarding what was being requested and the fact that no
responsive record existed. However, those misunderstandings do
not equate to a public records law violation such that the
Newspaper prevailed "in substantial part." It is in part
because the Commission acted with reasonable diligence and
provided more information than the public records law required
and no record existed to produce, that the Newspaper has not
prevailed in substantial part such that it is entitled to
recover reasonable attorney fees, damages, and other actual
costs under Wis. Stat. § 19.37(2). A review of the facts
highlights the reasonable confusion.
¶78 The Commission held a special meeting in closed
session on February 20, 2012. Two days later, Christine Won, a
reporter for the Newspaper, e-mailed two commissioners and
Racine Deputy City Attorney Scott Letteney. Won's e-mail asked
for information, not a record. Her e-mail stated, "I am
officially asking on the record to know the vote of each
42
No. 2013AP1715
commissioner from the closed [Commission] meeting Monday
[February 20, 2012,] in which they decided to reopen the police
chief search." (Emphasis added.)
¶79 Won sent a clarification e-mail hours later, which
stated: "Under statute 19.88(3) —— I am asking for the recorded
motions and votes of each [] Commissioner at the closed
meeting . . . ." Although this time Won asked for "recorded
motions and votes," her request was based on Wis. Stat.
§ 19.88(3), which is part of the open meetings law, not the
public records law. Section 19.88(3) requires governmental
bodies to record their "motions and roll call votes." Wis.
Stat. § 19.88(3). That statute does not expressly state when a
record must be created.27 In the same e-mail, Won again asked
for information, stating, "I would appreciate this information
as soon as practicable and without delay." (Emphasis added.)
¶80 The Commission's March 7 response stated that "[y]our
request for the specific vote of the [Commission] . . . is
denied." (Emphasis added.) Similarly, in its March 9 e-mail,
the Commission stated that it had a lawful basis "for denying
the release of the vote of the [Commission] from its
February 20, 2012 meeting." (Emphasis added.) Although that e-
27
The Newspaper argues that Wis. Stat. § 19.88(3)
implicitly requires a record to be created "as soon as
practicable and without delay." See Wis. Stat. § 19.35(4)(a).
We express no opinion on this argument. However, we note that
the "as soon as practicable and without delay" language of
§ 19.35(4)(a) allows a reasonable amount of time to respond to a
public records request.
43
No. 2013AP1715
mail stated that the Commission was "performing the required
balancing test for the release of records," it seemingly meant
that it was applying this balancing test to determine whether it
should release the requested information immediately.
Specifically, the Commission stated that it understood "the
import to the [Newspaper] of having this information" and,
therefore, offered to release "the specifics of the February 20
vote" within five business days of hiring a new police chief.
(Emphasis added.)
¶81 On March 12 the Newspaper's final request again asked
for information, not a record. The Newspaper stated that it
"would like the information immediately."
¶82 On March 22, two days after hiring a new police chief,
the Commission e-mailed the requested information to the
Newspaper. The Commission did not release a record at that time
because no record containing the requested information existed
before May 21. The Newspaper argues, in part, that waiting this
long for the information is waiting too long. The Commission is
under no obligation to provide information in response to a
records request.
¶83 The Commission reasonably interpreted the Newspaper's
e-mails as requests for information, not minutes. Indeed, it is
difficult to imagine that a local reporter, sophisticated
requester and wordsmith, who displayed familiarity with the
Commission, would have thought that meeting minutes were
available a mere two days after a special meeting was held and
before they would have been completed in the Commission's
44
No. 2013AP1715
ordinary course of business. Perhaps that is why the requests
and responses are framed in terms of access to information. In
fact, the Newspaper did not clarify until September 2012, when
it moved for summary judgment, that it was actually seeking
meeting minutes and that the information it received in March
2012 was unsatisfactory. Could both sides have done better?
Yes. Although not required, the Newspaper could have specified
that it wanted only an actual record or, more specifically,
minutes. The Commission could have clearly replied that no
record existed. However, the Newspaper's requests and the
Commission's responses demonstrate a dialogue between the
parties wherein information was provided in response to a
request for information at a time when no record existed.
Notably, the Newspaper does not complain that it failed to
receive the record.
¶84 Nonetheless, the circumstances presented in this case
demonstrate that the Commission provided, rather than hid,
information pertinent to the request. The Newspaper filed this
action before the record was created and after it knew that it
would receive the information. The creation of the record,
rather than the lawsuit, caused the record's production. The
Newspaper's argument rests upon the timing of the record's
creation under the open meetings law. Again, this is not an
open meetings law case.
¶85 We note that the Commission was not required to
respond by a specific date and time. The Commission could have
answered in a number of ways. It was not necessarily required
45
No. 2013AP1715
to notify the Newspaper that it would provide the information
after it decided to do so. "[U]nder [Wis. Stat.] § 19.35(4)(a),
receipt of [a public] records request triggers either a duty to
respond to the request or a duty to produce the requested
records." ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶24,
259 Wis. 2d 276, 655 N.W.2d 510. "Wisconsin's Public Records
Law does not explicitly require [a custodian] to
notify . . . the requester, as long as the [custodian] 'fill[s]
the request' and does so 'as soon as practicable and without
delay.'" Racine Educ. Ass'n II, 145 Wis. 2d at 523 (quoting
Wis. Stat. § 19.35(4)(a)). Nevertheless, the Commission did
both. It notified the Newspaper on March 9 that it would
release the requested information soon. The Newspaper
responded——by filing a lawsuit. On March 22 the Commission
followed through and provided the Newspaper with the requested
information, albeit not in record form. The Newspaper responded
by serving the lawsuit on the Commission. Moreover, even before
the Newspaper made its public records request, the Commission
had already issued a press release.
¶86 While the public records law does not impose a
specific timing requirement instructing when to file a mandamus
action, when a mandamus action is filed may significantly
influence whether the requester has "prevailed" in "substantial
part" so to be awarded reasonable attorney fees, damages, and
other actual costs. Here, the timing and language of the
requests and responses, the timing of the filing and service of
the lawsuit, the voluntary provision of information, and the
46
No. 2013AP1715
fact that no responsive record existed, all play a role in our
analysis that the Newspaper has not prevailed in substantial
part so to receive the award that it seeks.28 The lawsuit was
not causally related to the release of the record——the record
was not in existence when the lawsuit was commenced or even
served. Here, the Commission's conduct was reasonable under the
circumstances.
¶87 As a practical matter, in many smaller jurisdictions,
a local governmental body can be swamped with public records
requests and may need a substantial period of time to respond to
any given request. See Racine Educ. Ass'n II, 145 Wis. 2d at
523-24 (holding that a custodian timely released a record 35
days after it was requested). Many jurisdictions, like the one
in the case at issue, function with the help of part-time,
volunteer citizens. Governmental meetings may occur fairly
infrequently. Even in a larger jurisdiction, a significant
period of time may be needed to respond to a public records
request. For example, the court of appeals has held that the
passage of 41 days between a request and the City of Milwaukee
Police Department's release of the requested record was
reasonable. Watton, 306 Wis. 2d 542, ¶36, rev'd on other
grounds, 311 Wis. 2d 52. The Newspaper is incorrect in arguing
that Wis. Stat. § 19.35(4)(a) requires immediate disclosure.
28
Even if the Newspaper would have known that no record
existed and pursued an action under the open meetings law, it
would have been required to file a complaint with a district
attorney and then wait 20 days for a response from the district
attorney before filing suit. See Wis. Stat. § 19.97(1), (4).
47
No. 2013AP1715
See id. The public records law is less exact than the Newspaper
wishes.
¶88 We conclude that although the requests and the
responses are less than precise, the Newspaper has not prevailed
in substantial part so to entitle it to reasonable attorney
fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2). No record existed. Although not required, the
timing of the Commission's voluntary release of the requested
information further demonstrates that the Newspaper's requested
relief is not justified. The Newspaper argues that it "was
entitled to the information when the Newspaper first requested
its production, not a month later when the [Commission] actually
disclosed it." We note that what the Newspaper received a month
later was, in fact, information, not a record. The Newspaper's
argument about the timing of the release is curious given that
it seems to argue that the information, not a record, should
have been released earlier. In fact, the Newspaper had the
information that it requested, just not in record form, before
it served this lawsuit on the Commission. Therefore, contrary
to the Newspaper's assertion, the public records law does not
declare that the Newspaper prevailed in substantial part when it
made the request and filed and served the lawsuit before any
record existed, and when the Newspaper's request was for
information, which was provided, even though the Commission was
not required to provide information in response to a public
records request.
5. Precedent
48
No. 2013AP1715
¶89 Precedent instructs us that, as public records
litigation is concerned, the Newspaper has not prevailed in
substantial part in this action because the Commission acted
with reasonable diligence. See Racine Educ. Ass'n II, 145
Wis. 2d at 524.
¶90 In Racine Education Association I the Racine Education
Association made a public records request to the Board of
Education for the Racine Unified School District on May 18,
1984. Racine Educ. Ass'n I, 129 Wis. 2d at 323. The board did
not respond, so the association filed a mandamus action on June
7, 1984. Id. Also on June 7, the board filed an answer to the
mandamus petition, arguing that "it was exempt under sec.
19.35(1)(l), Stats., which states that compliance with a public
records request is not mandated if a new record would need to be
made by extracting information from existing records." Id. On
June 22, 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 association. Id. The
association appealed, seeking "attorney fees and costs." Id.
¶91 The court of appeals held that the association was not
entitled to attorney fees and costs under Wis. Stat. § 19.37(2)
because it had not prevailed in substantial part.29 Racine Educ.
29
In Racine Education Association I the court of appeals
adopted a test for determining whether a plaintiff prevailed in
substantial part and thus was entitled to reasonable attorney
fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2). Racine Educ. Ass'n v. Bd. of Educ. for Racine
Unified Sch. Dist., 129 Wis. 2d 319, 326-28, 385 N.W.2d 510 (Ct.
App. 1986) ("Racine Educ. Ass'n I"). The court of appeals
49
No. 2013AP1715
Ass'n II, 145 Wis. 2d at 525. The court of appeals "conclude[d]
that the request was filled as soon as practicable." Id. at
524. The court of appeals reasoned that "[t]he board presented
evidence that three computer programs had to be written to
extract the information from the archived computer tapes." Id.
Further, "[t]here were duplication errors and the usual program
'bugs' to be corrected." Id. The public records request "was
diligently, if not expediently, being worked on by several
departments simultaneously." Id. at 523. "The board's position
throughout has been that it was not required to turn over the
information to [the association], but was doing so
voluntarily . . . ." Id. Because "the failure to timely
respond to a request was caused by an unavoidable delay
accompanied by due diligence in the administrative processes,"
the association "has not substantially prevailed." Id. at 524.
¶92 Similarly, in the present case, the Commission
responded with reasonable diligence to the Newspaper's public
records request. Like the board in Racine Education
Association, the Commission voluntarily released the requested
information but maintained that it was not required to release
information because no responsive record existed. In fact, the
remanded the matter for the circuit court to make factual
findings. Id. at 329. On remand, the circuit court "awarded
attorney's fees" to the association. Racine Educ. Ass'n v. Bd.
of Educ. for Racine Unified Sch. Dist., 145 Wis. 2d 518, 525,
427 N.W.2d 414 (Ct. App. 1988) ("Racine Educ. Ass'n II"). On
appeal the court of appeals in Racine Education Association II
reversed, holding that the association was not entitled to
attorney fees. Id.
50
No. 2013AP1715
Commission released the requested information about three weeks
before being served with this lawsuit, one and a half months
before filing an answer to the mandamus petition, and two months
before drafting the meeting minutes at issue. Before the
minutes were drafted, no record containing the requested
information existed. The Commission was even more diligent than
the board in Racine Education Association because the Commission
responded twice to the Newspaper's request before the Newspaper
filed this lawsuit, whereas the board did not respond prior to
being sued.
¶93 Like the duplication errors and computer "bugs" that
prevented the requested record from being created earlier in
Racine Education Association, a clerical error may have
contributed to the timing of the Commission's creation of a
record. The Commission intended to approve the minutes for the
February 20 special meeting at its next regular meeting on
March 19, according to its standard practice for approving
minutes. But it was unable to do so because the minutes had not
been drafted in time for the March meeting. Commissioner
Rogers——the Commission's part-time volunteer secretary who
typically takes notes and drafts minutes for Commission
meetings——was unable to take notes on the February 20 special
meeting because he could not physically attend the meeting,
which was called on short notice. Accordingly, the minutes were
drafted shortly before and approved at the Commission's next
regular meeting, on May 22, according to its standard practice.
In fact, the Commission has maintained that it was not legally
51
No. 2013AP1715
required to create those minutes, but it created them anyway.
These facts do not support the Newspaper's accusation that the
Commission "deliberate[ly] fail[ed] to create the record" in
order to avoid public scrutiny for its official acts.
¶94 The Commission's reasonable conduct stands in stark
contrast to record custodians' conduct that resulted in awards
of reasonable attorney fees, damages, and other actual costs in
other cases brought under Wis. Stat. § 19.37. For example, in
State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 422 N.W.2d 898
(Ct. App. 1988), an inmate named Ralph Vaughan made a public
records request on January 26, 1987, seeking records of certain
parole board staff meetings. Vaughan, 143 Wis. 2d at 869.
Having received no response, Vaughan repeated his records
request several weeks later on February 19. Id. Still having
received no response, he filed a mandamus action approximately
one month later on March 13. Id. Two weeks later, on March 31,
the records custodian, Gail Faust, "supplied the requested
information and apologized for her lateness in responding to his
request." Id. Faust did not allege that the records did not
exist at the time of the requests.
¶95 The court of appeals held that Vaughan was "entitled
to costs, fees and damages under sec. 19.37(2) . . . ." Id. at
899. It reasoned that, "[a]fter Vaughan began this mandamus
action, Faust complied with Vaughan's requests and, by letter,
apologized for the delay. She gave no explanation for that
delay." Id. at 872. "Faust voluntarily ceased her unexplained
delay in complying with Vaughan's requests after he instituted
52
No. 2013AP1715
this mandamus action. Vaughan prevailed in substantial part."
Id. at 873.
¶96 Similarly, a requester was awarded reasonable attorney
fees, damages, and other actual costs in ECO, Inc., 259
Wis. 2d 276. In that case, ECO, Incorporated made a public
records request to the City of Elkhorn on April 24, 1996,
seeking engineering records. ECO, Inc., 259 Wis. 2d 276, ¶2.
"ECO was looking for these records because of severe water
problems occurring on its property[.]" Id. "ECO suspected the
problems were caused by a disruption of either a man-made or
natural underground flowage as a result of utility
construction." Id. "[T]he City neither responded to the
April 24, 1996 request nor produced the requested documents."
Id., ¶24. In 1997 ECO sued the city to recover damages for the
water damage to ECO's property. Id., ¶3 n.3.
¶97 After several years passed without a response to its
1996 public records request, ECO made an identical request on
September 22, 2000. Id., ¶4. On October 16, 2000, the city
denied the request, reasoning that the request improperly cited
to the federal Freedom of Information Act instead of the
Wisconsin public records law. Id., ¶4. On October 19, 2000,
ECO repeated its request. Id., ¶5. On December 1, 2000, the
city clerk stated that she would provide the requested records
when they were ready. Id. "ECO never received any further
response." Id. At ECO's suggestion, the district attorney's
office contacted the city at least twice, urging it to release
the requested records. Id. On March 8, 2001, having heard no
53
No. 2013AP1715
further response from the city, ECO filed a mandamus action
under Wis. Stat. § 19.37. Id., ¶6. "The City conceded a lack
of defense to the [public] records request" and offered to
release the records upon payment of copying costs. Id., ¶8. On
March 26, 2001, the city released the records to ECO. Id.
¶98 "Despite these disclosures, [ECO's chief executive
officer, E. Christian Olsen] remained suspicious that additional
records existed." Id., ¶9. Olsen went to city hall, where a
city employee showed him that many of the records that he
requested had not been disclosed. Id. Those records had been
removed from the city engineer's office around the time ECO sued
the city in 1997 over the water damage. Id. The records
existed at the time of ECO's initial public records request in
1996. Id., ¶¶3 n.3, 9. Olsen informed the city attorney that
many of his requested records had been withheld, and the city
attorney stated that he would investigate the matter. Id., ¶10.
On March 29, 2001, ECO sent a letter to the city attorney's
office, requesting release of the withheld records. Id. The
city attorney's office never responded. Id. ECO moved the
circuit court to award "actual, consequential and punitive
damages and costs and attorney's fees . . . ." Id., ¶11.
¶99 The court of appeals held that "ECO is entitled to
costs, fees and damages pursuant to Wis. Stat. § 19.37(2)."
Id., ¶30. It reasoned that, "under [Wis. Stat.] § 19.35(4)(a),
receipt of [a public] records request triggers either a duty to
respond to the request or a duty to produce the requested
records." Id., ¶24. "The City did not provide any response
54
No. 2013AP1715
whatsoever [to ECO's initial request in 1996] and therefore did
not comply with [public] records law." Id. "Because we
conclude that both the April 24, 1996 letter and September 22,
2000 letter were, in fact, [public] records requests which were
wrongfully denied, damages must be addressed." Id., ¶30.
"Because the City failed to respond to ECO's request and thus
failed to comply with the requirements of Wis. Stat.
§ 19.35(4)(a), ECO is entitled to costs, fees and damages
pursuant to Wis. Stat. § 19.37(2)." Id.
¶100 Unlike the record custodians in Vaughan and ECO, the
Commission acted with reasonable diligence in providing the
requested information even when no record existed. In addition
to issuing a press release, the Commission voluntarily released
the requested information before being served with this lawsuit
and before creating a record containing that information.
Further, the Commission released that information when it said
that it would——shortly after it hired a new police chief. By
contrast, the custodian in Vaughan released the requested
records after being sued, provided no reason for failing to
release the requested records earlier, and apologized for not
releasing the records sooner. In ECO, after being sued, the
city conceded that it had no defense against releasing the
requested records. Further, in ECO, the city still withheld
some of the requested records and it ignored ECO's subsequent
request to provide the records that had been withheld.
¶101 Furthermore, unlike the custodians in Vaughan and ECO,
the Commission responded to the requests before being sued. In
55
No. 2013AP1715
Vaughan Vaughan made two identical requests several weeks apart,
got no response to either request, and filed a mandamus action
approximately two months after making the initial request. In
ECO the requester got no response after several years, so he
made more requests and filed a mandamus action. Some of those
later requests went unanswered. In the present case, the
Commission issued a press release before receiving a public
records request, responded to the Newspaper's first request
within two weeks, and responded to the second request within two
days. The Commission did not respond to the Newspaper's final
request because the Newspaper filed this lawsuit only four days
after making its final request. However, the Commission
released the requested information to the Newspaper within six
days of this lawsuit being filed, before being served and before
any record existed.
¶102 A record custodian should not automatically be subject
to potential liability under Wis. Stat. § 19.37(2)(a) for
actively providing information, which it is not required to do
in response to a public records request, to a requester when no
record exists. While it might be a better course to inform a
requester that no record exists,30 the language of the public
30
See Wis. Dep't of Justice, Wisconsin Public Records Law,
Compliance Outline, at 18 (Sept. 2012) (citing State ex rel.
Zinngrabe v. School Dist. of Sevastopol, 146 Wis. 2d 629, 431
N.W.2d 734 (Ct. App. 1988)) ("If no responsive record exists,
the records custodian should inform the requester" of that
fact.), available at http://www.doj.state.wi.us/sites/default/
files/dls/public-records-compliance-outline-2012.pdf.
56
No. 2013AP1715
records law does not specifically require such a response.
Indeed, custodians in ECO and Vaughan were liable for attorney
fees, damages, and other actual costs, in part, because they did
not respond at all to public records requests when responsive
records existed at the time of the requests. Here, the
Commission provided information to the Newspaper even though no
record existed. The Commission's responses could have been
better but the Newspaper's requests could have been clearer. To
hold the Commission liable under § 19.37(2)(a) under the facts
of this case would discourage, rather than encourage,
communication between the government and a requester.
¶103 While the Newspaper is entitled to a timely response,
it is without precedential support to argue that it was entitled
to an immediate response. The Commission is under no obligation
to create a record in response to a request. The Newspaper is
not entitled to the release of information in response to a
public records request. As we noted earlier, Wis. Stat.
§ 19.35(4)(a) allows a custodian a reasonable amount of time to
respond to a public records request. Here, the Commission did
not withhold a record or fail to timely respond; no record
existed at the time of the request, the filing of the lawsuit,
or even when the lawsuit was served.
IV. CONCLUSION
¶104 We conclude that under the facts of this case, the
Newspaper did not prevail in substantial part in this action and
is therefore not entitled to reasonable attorney fees, damages,
and other actual costs under Wis. Stat. § 19.37(2), because the
57
No. 2013AP1715
Commission did not unlawfully deny or delay release of the
subject record. Whether the Commission violated the open
meetings law is not properly before the court because the
Newspaper did not request a district attorney to commence an
action under Wis. Stat. § 19.97. Under Blum, 209 Wis. 2d 377,
we may consider the Commission's defense that a responsive
record did not exist at the time of the request even though the
Commission first raised this defense in the mandamus action.
¶105 In other words, the Newspaper is not entitled to its
requested relief because its request is not supported by the
facts of this case or the law. Both parties contributed to any
misunderstanding, if there was one, of what was being requested
and the sufficiency of the responses. In any event, no
responsive record existed at the time of the request and no
record was produced because of the lawsuit. While a records
request need not be made with exacting precision to be deemed a
valid public records request, the Newspaper is a requester and
wordsmith with experience and sophistication. Here, the
requests could reasonably be perceived as seeking information,
rather than a record. Although under no obligation to provide
information in response to a records request, the Commission
provided the Newspaper with the answers to its questions by
providing information. Moreover, the subject request cites the
open meetings law. The Commission initially denied the records
requests but later agreed to provide, and did provide, the
requested information. At the time of the request and at the
time that the information was provided, no record existed that
58
No. 2013AP1715
could have been responsive to the request. The Newspaper no
longer seeks production of a record; it seeks only reasonable
attorney fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2)(a). Whether a record should have been in existence
at the time of the request is a matter of the open meetings law,
not public records law. Certainly the Commission cannot avoid a
public records request by failing to timely create a record. In
this case, however, the Commission responded to the Newspaper
with reasonable diligence and released the requested information
while maintaining that it was not legally required to do so and
at a time when no record existed. Neither the facts nor the law
support the conclusion that the Newspaper prevailed in
"substantial part."
By the Court.—The decision of the court of appeals is
reversed.
¶106 DAVID T. PROSSER, J., did not participate.
59
No. 2013AP1715.ssa
¶107 SHIRLEY S. ABRAHAMSON, J. (concurring). The
Newspaper no longer requests a record of the motion or votes
cast at the Commission's closed meeting on February 20, 2012.
The Newspaper obtained the information it was seeking about that
meeting on March 22, 2012. This was six days after the
Newspaper filed this mandamus action against the Commission
under Wis. Stat. § 19.37(1)(a) (2011-12)1 and 20 days before the
Commission was served on April 22, 2012.
¶108 The Newspaper now seeks reimbursement under the public
records law for the attorney fees, damages, and other actual
costs it has incurred in bringing this mandamus action against
the Commission.
¶109 For the reasons set forth, I conclude that the
Newspaper is not entitled to recover reasonable attorney fees,
damages, or other actual costs, even though the Newspaper is
correct in many of its arguments about its compliance with the
public records law and the Commission's noncompliance with that
law. I write separately because the majority opinion
confusingly skirts around the toughest issues presented and
fails to provide needed guidance to record requesters, record
custodians, litigants and their counsel, and courts.
¶110 This concurrence is organized into four parts.2
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
While there are many statements and discussions in the
majority opinion with which I take issue, I have limited the
scope of this concurrence to the subjects I consider most
pressing.
1
No. 2013AP1715.ssa
¶111 First, I set forth the relevant provisions of the
public records law (Wis. Stat. §§ 19.21-.39) and the open
meetings law (Wis. Stat. §§ 19.81-.98).
¶112 Second, I consider whether the request submitted by
the Newspaper constituted a valid record request under the
public records law. I conclude that it did. Any implication in
the majority opinion that the Newspaper's request was too poorly
worded to constitute a valid record request is, in my view,
misleading and plainly incorrect.
¶113 Third, I agree with the third-party amicus brief filed
by the Wisconsin Department of Justice that the Commission was
obligated to respond to the Newspaper's record request by
stating that the requested record did not exist.
¶114 Fourth, I consider whether the Newspaper is entitled
to recover reasonable attorney fees, damages, and other actual
costs from the Commission. This is the primary issue presented
in the instant case, and it turns on whether under Wis. Stat.
§ 19.37(2)(a), the Newspaper has prevailed "in whole or in
substantial part" in its mandamus action against the Commission.3
¶115 The court of appeals remanded the matter to the
circuit court to determine whether the Newspaper's mandamus
action was a cause of the Commission's release of information on
3
Wisconsin Stat. § 19.37(2)(a) provides in relevant part
that "the court shall award reasonable attorney fees, damages of
not less than $100, and other actual costs to the requester if
the requester prevails in whole or in substantial part in any
action filed under sub. (1) relating to access to a record or
part of a record . . . ."
2
No. 2013AP1715.ssa
March 22, 2012, such that the Newspaper prevailed in substantial
part in the mandamus action and is entitled to reasonable
attorney fees, damages, and other actual costs.4
¶116 The Newspaper objects to the remand, contending that
the Commission's failure to tell the Newspaper that the record
it was requesting did not exist subjects the Commission to
liability as a matter of law.
¶117 In my view, the Newspaper has not sufficiently
tethered its argument to the language of Wis. Stat.
§ 19.37(2)(a), which grants attorney fees, damages, and other
actual costs when a requester has prevailed in whole or in
substantial part in a mandamus action. Thus, I conclude that
the Commission's failure to inform the Newspaper that it was
requesting a nonexistent record does not demonstrate as a matter
of law that the Newspaper has prevailed in substantial part in
its mandamus action against the Commission. Although it seems
that the Newspaper was sandbagged, the Newspaper is not entitled
to its requested relief.
I
¶118 I begin by examining the statutory framework
underlying the present dispute.
4
See WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 458-59, 555
N.W.2d 140 (Ct. App. 1996) (explaining that when there is a
causal nexus between the plaintiff's bringing a mandamus action
and "the agency's surrender of the information," the plaintiff
has prevailed in substantial part in the mandamus action).
3
No. 2013AP1715.ssa
¶119 I turn first to the public records law, Wis. Stat.
§§ 19.21-.39. Several provisions of the public records law are
significant in the instant case:
• Wisconsin Stat. § 19.31, the declaration of policy in
the public records law, reflects Wisconsin's deep
commitment to open and transparent government.5
Section 19.31 provides that the policy of the public
records law is to ensure that the public has access to
"the greatest possible information regarding the
affairs of government and the official acts of
those . . . who represent them." (Emphasis added.)
Section 19.31 further directs that the public records
law "shall be construed in every instance with a
presumption of complete public access, consistent with
the conduct of governmental business."
• Wisconsin Stat. § 19.32(2) defines the word "record"
broadly as "any material on which written, drawn,
printed, spoken, visual, or electromagnetic
information . . . ."
• Wisconsin Stat. § 19.35(1)(b) grants members of the
public "a right to inspect a record and to make or
receive a copy of a record. (Emphasis added.)
• Wisconsin Stat. § 19.35(1)(h) declares that a request
to inspect, copy, or receive a copy of a record "is
5
See State v. Beaver Dam Area Dev. Corp., 2008 WI 90, ¶2,
312 Wis. 2d 84, 752 N.W.2d 295.
4
No. 2013AP1715.ssa
deemed sufficient" for purposes of the public records
law "if it reasonably describes the requested record
or the information requested." (Emphasis added.)
• Wisconsin Stat. § 19.35(4)(a) provides that the
custodian of a record, upon receiving a record
request, shall "as soon as practicable and without
delay, either fill the request or notify the requester
of the authority's determination to deny the
request . . . and the reasons therefor."
• Wisconsin Stat. § 19.37(1) explains that if a written
request for disclosure of a record is submitted but
the custodian withholds the record or delays granting
access to the record, then a mandamus action may be
brought to compel the record's disclosure.
• Wisconsin Stat. § 19.37(2)(a) allows a requester to
recover "reasonable attorney fees, damages of not less
than $100, and other actual costs . . . if the
requester prevails in whole or in substantial part" in
a Wis. Stat. § 19.37(1) mandamus action.
¶120 While the instant case revolves primarily around the
public records law, one provision of the open meetings law is
also relevant. Specifically, because the Newspaper requested a
record of the motion and vote of a governmental body, Wis. Stat.
§ 19.88(3) comes into play. Wisconsin Stat. § 19.88(3) requires
that motions and roll call votes be recorded, stating: "The
motions and roll call votes of each meeting of a governmental
body shall be recorded, preserved and open to public inspection
5
No. 2013AP1715.ssa
to the extent prescribed in subch. II of ch. 19 [the public
records law]."6
T
¶121 he distinction and interconnection between the public
records law and the open meetings law are illustrated by State
ex rel. Zinngrabe v. School District of Sevastopol, 146
Wis. 2d 629, 635, 431 N.W.2d 734 (Ct. App. 1988). In Zinngrabe,
the court of appeals stated that the public records law "does
not dictate which documents are to be created or direct the
government to maintain specific records."7 Instead, "[t]he duty
to maintain such records and the enforcement of such duty" are
grounded in the open meetings law.8 The public records law
governs the right to access records——not the creation of
records.
¶122 With this statutory framework in mind, I turn to the
substantive issues presented.
II
¶123 The first question presented is whether the Newspaper
submitted a valid record request. I conclude that it did. My
6
The Commission argues that Wis. Stat. § 19.88(3) does not
apply in the instant case because the Commission's vote at its
closed meeting on February 20, 2012, was not a roll call vote.
The Commission overlooks, however, that Wis. Stat. § 19.88(3)
also requires motions to be recorded. Regardless of whether the
Commission's vote was a roll call vote, it was indisputably a
vote on a motion that Wis. Stat. § 19.88(3) required to be
recorded.
7
State ex rel. Zinngrabe v. Sch. Dist. of Sevastopol, 146
Wis. 2d 629, 635, 431 N.W.2d 734 (Ct. App. 1988).
8
Id.
6
No. 2013AP1715.ssa
conclusion is supported by the language of the request itself,
by Wis. Stat. § 19.35(1)(h) (the provision governing the
sufficiency of record requests), and by case law.
¶124 At a special meeting of the Commission held in closed
session on February 20, 2012, a commissioner moved to reconsider
candidates who had previously been eliminated from the pool of
applicants for the open police chief position. The motion was
made, seconded, and approved by a voice vote.
¶125 Later that day, the Commission issued a press release
announcing its decision. According to the press release, the
Commission had "determined that it preferred to have a broader
pool of candidates moving forward." The press release did not
state which commissioners had made, seconded, or voted in favor
of the motion.
¶126 Shortly after the Commission issued its press release,
the Newspaper published an article written by Christine Won, one
of its reporters, regarding the Commission's decision to broaden
its applicant pool. According to Won's article, certain members
of the community were critical of the Commission's decision and
were accusing the Commission of racial discrimination.
¶127 On February 22, 2012, two days after the Commission's
special meeting, Won e-mailed the Commission to request a record
of the motion and votes cast at the meeting.
¶128 Won had apparently been told to direct her "open
records request" to the custodians of the record she was
seeking. Accordingly, Won e-mailed the president and secretary
of the Commission, asking "to know" how each Commissioner voted
7
No. 2013AP1715.ssa
at the special meeting. Won's e-mail read in relevant part as
follows:
I was told to make my open records request directly to
the custodians so am asking you as the president and
secretary of the commission respectively.
I am officially asking on the record to know the vote
of each commissioner from the closed PFC meeting
Monday in which they decided to reopen the police
chief search.
If you choose to deny, please provide a written
explanation.
¶129 Won followed up with a second e-mail that same day.
In her second e-mail, Won specifically requested "the recorded
motions and votes of each [] commissioner at the closed
meeting . . . ." (Emphasis added.) This e-mail read in
relevant part as follows:
Under statute 19.88(3) —— I am asking for the recorded
motions and votes of each PFC commissioner at the
closed meeting on Monday, including who made the
motion and who seconded it.
. . . .
I would appreciate this information as soon as
practicable and without delay. If you choose to deny
this request, please provide a written explanation.
¶130 These two e-mails constitute the record request at
issue in the instant case.
¶131 Won's first e-mail clearly states the "information
requested" by asking for "the vote of each commissioner from the
closed PFC meeting Monday in which they decided to reopen the
police chief search." Won's second e-mail further specifies the
"requested record" by asking for "the recorded motions and votes
8
No. 2013AP1715.ssa
of each [ ] commissioner at the closed meeting on Monday,
including who made the motion and who seconded it." These e-
mails make clear what Won was seeking and constitute a valid
record request.
¶132 The majority opinion does not directly contradict this
conclusion. However, it repeatedly implies that Won's e-mails
were too imprecise to constitute a valid record request.
¶133 The majority opinion contends that "the requests could
reasonably be perceived as seeking information, rather than a
record."9 It also observes that Won's second e-mail cited a
provision of the open meetings law (Wis. Stat. § 19.88(3))
rather than the public records law.10 Finally, the majority
opinion characterizes the Newspaper as a "wordsmith with
experience and sophistication," suggesting that record requests
submitted by journalists must meet some special standard of
clarity beyond that applied to other requesters.11
¶134 Any implication in the majority opinion that Won's e-
mails did not constitute a valid record request is, in my view,
plainly incorrect. I take this position for four basic reasons.
¶135 First, the request meets the standard for sufficiency
set forth in Wis. Stat. § 19.35(1)(h). This section provides
that a record request "is deemed sufficient if it reasonably
describes the requested record or the information requested."
9
Majority op., ¶8.
10
Id.
11
Id., ¶¶8, 54, 83, 105.
9
No. 2013AP1715.ssa
(Emphasis added.) Case law explains that Wis. Stat.
§ 19.35(1)(h) does not require a record request "to contain any
'magic words' nor do[es it] prohibit the use of any words."12 In
the instant case, the record request reasonably described the
record and information being requested and is therefore valid.
¶136 Second, the majority opinion's statement that Won's e-
mails could reasonably be perceived as seeking information
rather than a record is not persuasive.
¶137 In her first e-mail, Won explicitly characterizes her
request as an "open records request." In her second e-mail, Won
specifically requests "the recorded motions and votes of each []
commissioner at the closed meeting on Monday, including who made
the motion and who seconded it." (Emphasis added.) In
combination, these statements make clear that Won was not just
requesting information that was not encapsulated in a record.
She was requesting a record containing specific information,
which she described in her e-mails.
¶138 Of course, what Won ultimately sought to obtain was
information. But this fact does not undermine the validity of
Won's record request.
¶139 A distinction can be drawn between requests for public
records, which are governed by the public records law, and
requests for information not contained in records, which are not
12
ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶23, 259
Wis. 2d 276, 655 N.W.2d 510 ("None of these statutes requires a
request to contain any "magic words" nor do they prohibit the
use of any words.").
10
No. 2013AP1715.ssa
subject to the public records law. However, the majority
opinion goes too far and creates a false dichotomy between the
two, suggesting that a request may be for either records or for
information, but not for both.13
¶140 The words "record" and "information" are not mutually
exclusive either in common parlance or under the public records
law. Because the pursuit of information is the driving force
behind record requests, the meanings of the two words are
interconnected and overlapping in the context of the public
records law.
¶141 For example, the declaration of legislative policy set
forth at Wis. Stat. § 19.31 refers to the public's right under
the public records law to access "information" regarding
governmental business, providing that it is the state's public
policy that "all persons are entitled to the greatest possible
information . . . ."14 To further that public policy, § 19.31
further provides that the public records law "shall be construed
in every instance with a presumption of complete public access,
consistent with the conduct of governmental business."15
13
Majority op., ¶54 ("[T]he requests could reasonably be
perceived as seeking information, rather than a record."
(Emphasis added.))
14
Wis. Stat. § 19.31.
15
See also ECO, Inc., 259 Wis. 2d 276, ¶23 ("[T]he
legislature's well-established public policy presumes
accessibility to public records and mandates that open records
laws be liberally construed to favor disclosure . . . .").
11
No. 2013AP1715.ssa
¶142 Likewise, Wis. Stat. § 19.35(1)(h) refers to both
information and records, stating that a request for a public
record is sufficient "if it reasonably describes the requested
record or the information requested." (Emphasis added.) The
express language of § 19.35(1)(h) contradicts the implication in
the majority opinion that because Won's initial e-mail to the
Commission described the information she was seeking but not the
record she was seeking, she did not make a valid record request.
¶143 In short, the suggestion in the majority opinion that
Won's e-mails could reasonably have been interpreted as
requesting information rather than a record conflicts with the
language and policy of the public records law. I conclude that
Won's e-mails constitute a valid record request notwithstanding
Won's ultimate goal of obtaining information.
¶144 Third, the majority opinion's reliance on Won's
reference to Wis. Stat. § 19.88(3) (a provision within the open
meetings law) to demonstrate that the request was not sufficient
is misguided. Won's reference to § 19.88(3) does not render
Won's record request invalid.
¶145 As previously explained, no particular words are
prohibited in a record request, so no particular language or
references necessarily invalidate a record request.16 Thus,
Won's reference to § 19.88(3), in and of itself, is not
dispositive. This conclusion is supported by ECO, Inc. v. City
of Elkhorn, 2002 WI App 302, ¶¶25-26, 259 Wis. 2d 276, 655
16
Id., ¶¶25-26.
12
No. 2013AP1715.ssa
N.W.2d 510, in which the court of appeals determined that
although the request at issue referenced the federal Freedom of
Information Act (FOIA) instead of the Wisconsin public records
law, it was a valid record request under the Wisconsin public
records law.
¶146 More importantly, Won's reference to the open meetings
law (that is, to Wis. Stat. § 19.88(3)) was not necessarily
incorrect. Section 19.88(3) provides that the motions and roll
call votes of a governmental body shall be recorded, preserved,
and open to public inspection pursuant to the extent prescribed
in subchapter II of Chapter 19 (the public record law). In the
instant case, Won sought a record of the motion and votes of the
Commission at a special meeting held on February 20, 2012. Her
reference to § 19.88(3) can be reasonably understood as
indicating that she believed the motion and votes would be
recorded and made available to her pursuant to § 19.88(3) and
the public records law. Section 19.88(3) was, in short, highly
relevant to Won's record request, and Won's reference to it does
not invalidate her request.
¶147 Fourth, Won's status as a journalist for the Newspaper
does not affect the validity of her record request whatsoever.
Neither the statutes nor the case law support the notion that
different types of requesters must meet different standards of
clarity in order for their record requests to be deemed
sufficient under the public records law.
¶148 In sum, for all the reasons set forth, I conclude that
Won's e-mails constituted a valid record request under the
13
No. 2013AP1715.ssa
public records law. Because Won reasonably described the record
and information being requested, the record request was
sufficient. The majority opinion's suggestions to the contrary
are misleading and unpersuasive.
III
¶149 I turn to the second question presented: In
responding to Won's record request, was the Commission obligated
to explain that the requested record did not yet exist? I
conclude that it was.
¶150 Won's e-mails requested a record that was required to
be created under Wis. Stat. § 19.88(3) but that had not yet been
produced.17 The Commission did not tell Won that she had
17
The Newspaper asserts not just that it had the right to
obtain the record Won requested but also that it had the right
to obtain the record promptly. According to the Newspaper, the
delayed creation of the record Won requested was one more
example of the Commission's violating both the letter and the
spirit of the public records and open meetings laws.
As the Wisconsin Department of Justice explains in its
amicus brief, Wis. Stat. § 19.88(3) and parliamentary procedure
strongly suggest that a governmental body must record all
motions and votes at the time of the meeting or as soon
thereafter as practicable. More specifically, the Department
interprets the statement in Wis. Stat. § 19.35(4)(a) that a
response must be provided "as soon as practicable and without
delay" as follows:
DOJ policy is that ten working days generally is a
reasonable time for responding to a simple request for
a limited number of easily identifiable records. For
requests that are broader in scope, or that require
location, review or redaction of many documents, a
reasonable time for responding may be longer.
However, if a response cannot be provided within ten
working days, it is DOJ's practice to send a
14
No. 2013AP1715.ssa
requested a nonexistent record. Instead, the Commission sent
Won two e-mails stating that it was denying Won's record request
for public policy reasons. The e-mails set forth two different
reasons for the denial, both of which the Commission has since
abandoned.
¶151 The Commission's first e-mail cited a case that held
that a vote in a closed governmental meeting "merely formalizes
the result reached in the deliberating process,"18 implying that
the Commission believed the commissioners' vote was not required
to be recorded. The Commission's second e-mail cited public
communication indicating that a response is being
prepared.
Wis. Dep't of Justice, Wis. Public Records Law: Wis. Stat.
§§ 19.31-19.39 Compliance Outline at 13 (Sept. 2012), available
at http://tinyurl.com/ljx49na (last visited June 15, 2015).
Requiring motions and votes to be promptly recorded
furthers the policy of providing meaningful public access to
information about governmental decisions and decision-making
processes. See Wis. Stat. §§ 19.31, 19.81. In contrast,
construing Wis. Stat. § 19.88(3) as imposing no mandatory
timeframe for recording a governmental body's motions and votes
would render toothless the requirement that such motions and
votes be recorded and would enable governmental bodies to
deprive the public of meaningful access to important information
by indefinitely postponing a record's creation.
With this in mind, I conclude that the record Won requested
was not timely created by the Commission. The minutes of the
February 20, 2012, Commission meeting, at which the motion to
reopen the police chief applicant pool was made, seconded, and
approved by a voice vote were not made available for public
inspection until May 22, 2012, three months after the meeting
took place.
18
State ex rel. Cities Serv. Oil Co. v. Bd. of Appeals, 21
Wis. 2d 516, 539, 124 N.W.2d 809 (1963).
15
No. 2013AP1715.ssa
policy reasons for denying Won's request, including concerns
about the commissioners' well-being if their votes were made
public.
¶152 By providing these reasons for its denial of Won's
record request, the Commission implied that the requested record
existed but was being withheld. The Newspaper responded to the
Commission's apparent withholding of the record by filing a
mandamus action to compel disclosure of the record. The
Commission knew, but the Newspaper did not know, that the record
did not exist.
¶153 Had the Commission informed Won that the record she
had requested did not exist, the Newspaper would have known it
could not compel the Commission to disclose the nonexistent
record under the public records law. Consequently, the
Newspaper would not have filed a futile mandamus action under
Wis. Stat. § 19.37(1)(a). It could instead have sought to
compel the Commission to create the record under the open
meetings law.
¶154 In short, this litigation was spawned by the
Commission's failure to inform Won that the record she requested
did not exist. Indeed, in this court, the Commission's primary
arguments to defeat the Newspaper's claims rest on the fact that
the record did not exist, not that the Commission acted
reasonably or in good faith.
¶155 Unfortunately, the breakdown in communication that
underpins the present case seems likely to recur in other cases.
Requests for public records are common, and some requests will
16
No. 2013AP1715.ssa
inevitably be filed for nonexistent records. The instant case
therefore presents this court with a valuable opportunity to
provide guidance to record custodians on how best to respond to
requests for nonexistent records. The majority opinion fails to
seize this opportunity.
¶156 I would adopt the position advocated by the Wisconsin
Department of Justice in its amicus brief: In the simple
scenario in which a record custodian knows it has no responsive
record, the custodian must notify the requester as soon as
practicable and without delay that the requested record does not
exist.19
¶157 My conclusion is supported by the text of the public
records law itself.
19
The Wisconsin Department of Justice plays a special role
with regard to the public records law. The legislature has
accorded the Attorney General, who supervises and directs the
Department of Justice, special significance in interpreting the
public records law. The legislature has specifically authorized
the Attorney General to advise any person about the
applicability of the law. Wis. Stat. § 19.39. The Attorney
General has not issued a formal or informal opinion letter or
other document regarding the issue presented in the instant
case. Rather, the Department of Justice has filed a nonparty
brief expressing its view. The Attorney General's opinion,
advice, and brief are not binding on this court, but we may give
them persuasive effect. See Juneau County Star-Times v. Juneau
County, 2013 WI 4, ¶36 n.18, 345 Wis. 2d 122, 824 N.W.2d 457.
Furthermore, the Department of Justice has issued a
document entitled Wisconsin Public Records Law (Compliance
Outline) that assists government entities and the public in
interpreting and applying the public records law. See Wis.
Dep't of Justice, Wis. Public Records Law: Wis. Stat. §§ 19.31-
19.39 Compliance Outline (Sept. 2012), available at
http://tinyurl.com/ljx49na (last visited June 15, 2015).
17
No. 2013AP1715.ssa
¶158 The public records law is clear that a record
custodian need not create a record simply to fill a record
request; the duty to create a record must be found elsewhere.20
The public records law is silent, however, regarding what a
record custodian should say in response to a request for a
nonexistent record. I conclude that the only reasonable
interpretation of the public records law is that a record
custodian must notify the requester when no responsive record
exists.
¶159 My reasoning is as follows.
¶160 Under Wis. Stat. § 19.35(4)(a), "[e]ach authority,
upon request for any record, shall, as soon as practicable and
without delay, either fill the request or notify the requester
of the authority's determination to deny the request in whole or
in part and the reasons therefor (emphasis added)." The
statutory options are, therefore, to comply with the record
request or to deny it and provide an explanation. A refusal to
grant access to the requested record amounts to a denial of the
request.
20
See Zinngrabe, 146 Wis. 2d at 635.
18
No. 2013AP1715.ssa
¶161 In explaining a decision to deny a record request, a
record custodian must be forthright and specific.21
¶162 To pay heed to the legislative declaration of policy
that the public is "entitled to the greatest possible
information regarding the affairs of government,"22 and to meet
the record custodian's responsibility of explaining with
specificity a refusal to grant access to a record, a record
custodian faced with a request for a record that the custodian
knows (or should know) does not exist must promptly inform the
requester that the record does not exist.
¶163 My conclusion is supported by written guidance that
the Wisconsin Department of Justice has provided to the public
on complying with the public records law. The Department of
Justice has explained that "[t]he public records law does not
require authorities to create new records in order to fulfill
public records requests," but "[i]f no responsive records exist,
the authority should say so in its response."23
21
See Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279
N.W.2d 179 (1979) (providing that if a record custodian denies a
record request, "he must state specific public-policy reasons
for the refusal," which will "provide a basis for review in the
event of court action"). See also State ex rel. Kalal v.
Circuit Court for Dane County, 2004 WI 58, ¶¶53-57, 271
Wis. 2d 633, 681 N.W.2d 110 (discussing the common, dictionary,
plain meaning definition of the word "refusal" in a different
statute).
22
Wis. Stat. § 19.31.
23
Wis. Dep't of Justice, Wis. Public Records Law: Wis.
Stat. §§ 19.31-19.39 Compliance Outline at 1, 15, 17-18 (Sept.
2012), available at http://tinyurl.com/ljx49na (last visited
June 15, 2015).
19
No. 2013AP1715.ssa
¶164 Considerations of common sense and judicial efficiency
further support my conclusion. Notifying a requester that a
requested record does not exist "avoids confusion and the
appearance of delay, and decreases the likelihood of unnecessary
litigation."24 A record custodian who knows that a requested
record does not exist but fails to inform the requester of that
fact invites the requester to repeat the follies of the
Newspaper in the instant case. A diligent requester will seek
in vain to compel disclosure of a nonexistent record by filing a
mandamus action.
¶165 It is easy for custodians to comply with the
obligation to inform a requester of the nonexistence of a
record. Record custodians are already required to respond to
valid record requests under Wis. Stat. § 19.35(4)(a). Why
shouldn't record custodians faced with requests for nonexistent
records tell the truth in response to such requests by
explaining that the records do not exist?
¶166 In sum, the Commission was obligated to inform Won
that the record she requested did not exist. The Commission
failed to fulfill that obligation, spurring the unnecessary and
protracted litigation now before this court and causing both the
Newspaper and the Commission to incur unnecessary expenses.
IV
24
Non-Party Brief of the Wisconsin Department of Justice,
at 12.
20
No. 2013AP1715.ssa
¶167 I turn, finally, to the question of whether the
Newspaper is entitled to recover reasonable attorney fees,
damages, and other actual costs incurred in the instant mandamus
action against the Commission. I conclude that it is not.
¶168 Pursuant to Wis. Stat. § 19.37(2)(a), the Newspaper
can recover reasonable attorney fees, damages, and other actual
costs only if it has prevailed in whole or in substantial part
in its mandamus action against the Commission. Section
19.37(2)(a) provides in relevant part as follows:
(2) Costs, fees, and damages. (a) Except as provided
in this paragraph, the court shall award reasonable
attorney fees, damages of not less than $100, and
other actual costs to the requester if the requester
prevails in whole or in substantial part in any action
filed under sub. (1) relating to access to a record or
part of a record under s. 19.35 (1)(a).
¶169 The public records law is silent with regard to the
remedy available when a requester is induced to file a mandamus
action under Wis. Stat. § 19.37(1)(a) by what the Newspaper
characterizes as a custodian's misleading responses to a record
request. The Newspaper asserts that it reasonably believed that
the Commission's stated reasons for denying the record request
were invalid and that the Newspaper was therefore justified in
commencing the present mandamus action.
¶170 According to the Newspaper, failing to order the
Commission to reimburse the Newspaper would reward the
Commission for its obfuscation and would allow custodians to
flout the procedural requirements and purpose of the public
records law with impunity. According to the Commission, the
21
No. 2013AP1715.ssa
nonexistence of the record eliminates the potential for any
liability whatsoever under the public records law.
¶171 The Newspaper's argument has merit. By declining to
grant the Newspaper its requested relief, this court runs the
risk of discouraging the Newspaper and other record requesters
from seeking to enforce their right to access public records in
the future for fear of incurring the substantial attorney fees
and costs the Newspaper now faces. This result would be
antithetical to the purposes of the public records law.
¶172 Public policy supports granting the Newspaper's
request for reimbursement of reasonable attorney fees, damages,
and other actual costs even if, as the Commission would have us
believe, the Commission simply made a mistake, with no malicious
intent, and did not attempt to cover up an official act.
"Practical realities dictate that very few of our citizens have
the ability to be personally present during the conduct of
government business. If we are to have an informed public, the
media must serve as the eyes and ears of that public."25 The
danger is that the media will not serve in this role if the
financial risk is too great.
¶173 Nevertheless, I conclude that the statutes do not
afford the Newspaper the relief it seeks.
¶174 Wisconsin Stat. § 19.37(2)(a) requires that the
Newspaper must prevail in whole or in substantial part in its
25
State ex rel. Newspapers, Inc. v. Showers, 135
Wis. 2d 77, 81, 398 N.W.2d 154 (1987).
22
No. 2013AP1715.ssa
mandamus action against the Commission to be awarded fees and
costs.
¶175 Relying on case law, the court of appeals remanded the
matter to the circuit court to determine whether the Newspaper's
mandamus action was a cause of the Commission's release of
information on March 22, 2012, such that the Newspaper prevailed
in substantial part in its mandamus action and is entitled to
reasonable attorney fees, damages, and other actual costs.26
¶176 The Newspaper objects to the decision of the court of
appeals, which remanded the matter. The Newspaper urges that
as a matter of law, it has prevailed in substantial part in its
mandamus action against the Commission. According to the
Newspaper, the Commission is precluded from abandoning the
reasons set forth in its initial denials of Won's record request
and from belatedly arguing that the requested record did not
exist. The Newspaper argues that the Commission is bound by its
misleading responses and now has no remaining defense at all.
¶177 The essence of the Newspaper's argument is that the
Commission violated the public records law by failing to inform
Won that the record she had requested did not exist and that the
law must provide a remedy for that violation.
¶178 Although it tries, the Newspaper cannot successfully
tether its argument for fees, damages, and costs to the language
26
See WTMJ, Inc., 204 Wis. 2d at 458-59 (explaining that
when there is a causal nexus between a mandamus action and "the
agency's surrender of the information," the plaintiff has
prevailed in substantial part in the mandamus action).
23
No. 2013AP1715.ssa
of Wis. Stat. § 19.37(2)(a). Section 19.37(2)(a) provides
plaintiffs with the right to recover reasonable attorney fees,
damages, and other actual costs only under the circumstances
specified in the statute: when plaintiffs prevail in whole or
in substantial part in a Wis. Stat. § 19.37(1) mandamus action.
The record in the instant case does not satisfy this statutory
requirement because the Newspaper has not demonstrated that it
prevailed in whole or in substantial part in its mandamus
action. Furthermore, the Newspaper does not seek a remand as
the court of appeals ordered. Accordingly, I reluctantly
conclude that the Newspaper is not entitled to the reasonable
attorney fees, damages, and other actual costs that it requests
under the public records law.
¶179 I would be remiss if I did not comment on the majority
opinion's misguided discussion of State ex rel. Blum v. Board of
Education, 209 Wis. 2d 377, 386, 565 N.W.2d 140 (Ct. App. 1997).
In Blum, a requester asked for a copy of a student's academic
records. The custodian refused to release the student's
records, but in its response failed to cite the statutory
provision that grants students the right to keep their records
private.27 The court of appeals concluded that a refusal to
release a record for an inadequate reason "does not prevent a
27
Wisconsin Stat. § 19.36(1) provides that "[a]ny record
which is specifically exempted from disclosure by state or
federal law or authorized to be exempted from disclosure by
state law is exempt from disclosure under s. 19.35(1) . . . ."
Chapter 118 of the Wisconsin Statutes, applicable in Blum,
mandates confidentiality of pupil records.
24
No. 2013AP1715.ssa
court from determining whether a 'clear statutory exception'
applies" to support the refusal.28
¶180 Blum hinged on an express statutory exception to the
mandate of Wis. Stat. § 19.35. The express statutory exception
implicated the privacy rights of a third party.29 Blum does not
apply in the instant case. Try as it might, the majority
opinion cannot locate a clear statutory exception applicable to
the present case. Instead, the majority opinion cobbles
together several provisions and in a conclusory fashion opines
that "a record's non-existence provides a clear statutory
exception to disclosure under the public records law."30
¶181 In Blum, the applicability of the statutory exception
should have been obvious and well known to the requester, the
custodian, and the courts. In the instant case, whether the
record existed was uniquely known only to the Commission, not to
the Newspaper or the courts. In the instant case, unlike in
Blum, the custodian (the Commission) did not provide sufficient
notice to the requester (the Newspaper) to enable it to
challenge the denial of its record request and did not provide a
basis for judicial review.
¶182 In sum, I conclude that the Newspaper submitted a
valid record request; that the Commission was obligated to, but
28
State ex rel. Blum v. Bd. of Educ., Sch. Dist. of Johnson
Creek, 209 Wis. 2d 377, 388, 565 N.W.2d 140 (Ct. App. 1997).
29
See Wis. Stat. § 118.125(1)(c), (d) & (2).
30
Majority op., ¶73.
25
No. 2013AP1715.ssa
did not, respond truthfully to the Newspaper's record request by
explaining that the record did not exist; and that on this
record, despite the Commission's failure to promptly inform the
Newspaper that the record did not exist, the Newspaper is not
entitled as a matter of law to recover attorney fees, damages,
or other actual costs under the public records law. The record
before the court does not fulfill the requirements set forth at
Wis. Stat. § 19.37(2)(a) and in the case law.
¶183 For the reasons set forth, I write separately.
¶184 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
26
No. 2013AP1715.ssa
1
The Journal Times v. City of Racine Board of Police and Fire Commissioners
Court: Wisconsin Supreme Court
Date filed: 2015-06-18
Citations: 362 Wis. 2d 577, 2015 WI 56, 866 N.W.2d 563, 2015 Wisc. LEXIS 324
Copy CitationsCombined Opinion