ECO, Inc. v. City of Elkhorn, 02-0216.

• Decision Date: 20 November 2002
• Docket Number: No. 02-0216.,02-0216.
• Citation: 655 N.W.2d 510,259 Wis.2d 276,2002 WI App 302
• Parties: ECO, INCORPORATED, Petitioner-Appellant, v. CITY OF ELKHORN, a Wisconsin municipal corporation, and Nancy B. Jacobson, City of Elkhorn, City Clerk, Respondents-Respondents.
• Court: Wisconsin Court of Appeals

259 Wis.2d 276

2002 WI App 302

655 N.W.2d 510

ECO, INCORPORATED, Petitioner-Appellant, v. CITY OF ELKHORN, a Wisconsin municipal corporation, and Nancy B. Jacobson, City of Elkhorn, City Clerk, Respondents-Respondents.

No. 02-0216.

Court of Appeals of Wisconsin.

Oral argument October 2, 2002.

Decided November 20, 2002.

On behalf of the petitioner-appellant, there were briefs by Linda S. Isnard and Terrance E. Nilles of von Briesen & Roper, S.C., Milwaukee. There were oral arguments by Linda S. Isnard.

On behalf of the respondents-respondents, there was a brief by John M. Murphy of Leece & Phillips, S.C., Elkhorn. There were oral arguments by Ward D. Phillips.

Before Brown, Anderson and Snyder, JJ.

¶ 1. SNYDER, J.

ECO, Incorporated appeals from a judgment and orders of the circuit court ruling that ECO's two requests for records to the City of Elkhorn, filed pursuant to the Freedom of Information Act (FOIA), were not open records requests pursuant to WIS. STAT. §§ 19.31 through 19.37 (1999-2000)¹ and thus not actionable via a writ of mandamus. ECO argues that the two requests qualified as requests under Wisconsin open records law despite the mistaken reference to FOIA. We agree that the two requests required, at the very least, a response from the City. We therefore reverse the judgment and orders of the circuit court and remand for proceedings consistent with this opinion.

FACTS²

¶ 2. ECO is a Wisconsin corporation with its principal office in Elkhorn, Wisconsin. On or about April 24, 1996, ECO's president and CEO, E. Christian Olsen, submitted a written request to the City for access to various public records; the request was denominated a request pursuant to the Freedom of Information Act and read:

Please provide us with the following information as allowed under F.O.I.A.:

All engineering plans, prints, as built drawings, engineering and inspection reports as related to:

1. Deere Road sanitary sewer from a point 100' west of STH 67 to a point 800' west of STH 67.

2. Deere Road water main from and to points as defined in (1) above.

3. Deere Road storm sewer as defined in (1) above.

4. Deere Road as defined in (1) above.

5. Sanitary sewer main as is crossing property commonly referred to as lot #'s 2 and 3 of the Deere Road Industrial Park 6. Storm sewer within a 100' range of the northerly boundary of lot 1 of the Deere Road Industrial Park.

7. Any and all underground utilities owned, operated, or controlled by the City of Elkhorn within a 200' range of the boundaries of lot 2 and 3 of the Deere Road Industrial Park.

ECO was looking for these records because of severe water problems occurring on its property; ECO suspected the problems were caused by a disruption of either a man-made or natural underground flowage as a result of utility construction.

¶ 3. ECO eventually received a copy of a letter to the City from the City's engineers, Crispell-Snyder, Inc., and an "as-built" map. The letter, dated May 21, 1996, which specifically refers to ECO's request, indicates that Crispell-Snyder sent the City some of the requested items and informs the City that some of the requested records were not available at that office. However, ECO did not receive any formal response from the City either granting or denying its request. Olsen contacted the city clerk and asked if there were additional records but was told there were not any more. Thereafter, ECO hired an engineering consultant, installed monitoring wells, did extensive excavations and brought in several tons of stone.³ ¶ 4. On or about September 22, 2000, ECO submitted a second written request to the City virtually identical to the April 24, 1996 request; in addition, ECO requested the following:

Please provide us with the following information as allowed under FOIA:

1. Any and all documents in your possession, your agents [sic] possession including but not limited to contracted insurance carriers and underwriters, their agents, engineering firms, or other contracted professional service offices, and in the possession of related City of Elkhorn affiliates or operating affiliates, past or present city officials and/or employees, including but not limited to the Elkhorn Light and Water Commission, relating to properties in the Deere Road Industrial Park North of the centerline of Deere Road contained within the following description:

From a point 100' west of the intersection of Deere Road and Wisconsin State Highway 67 to a point 800' west of said intersection, and from the centerline of Deere Road in the City of Elkhorn to a point 400' north of the centerline of Deere Road, encompassing the period January 1977 thru [sic] August 2000, including but not limited to construction, land purchases, sales, transfers, zoning, zoning changes, taxation, memorandums, meeting minutes, or other form of written communication.

2. Your written explanation of the inability to provide any of the aforementioned items.

On October 16, 2000, the City, via legal counsel, responded to ECO's request:

Please be advised that we have received your request for information under the Freedom of Information Act. Your request has fallen upon my desk for a response. I have researched the Freedom of Information Act and your request. Please be advised that neither the State of Wisconsin nor the City of Elkhorn is subject to the Freedom of Information Act. The Act applies only to federal agencies and does not create a right of access to records held by any state or local government agency. As such, we will not be responding to your request.

Wisconsin and the City of Elkhorn maintain open records pursuant to state law. Please feel free to make a request under a legitimate avenue.

¶ 5. On or about October 19, 2000, ECO resubmitted its requests for records to the City; the requests were identical to the September 22, 2000 requests except this time ECO specifically referenced Wisconsin public records law instead of FOIA. On December 1, 2000, ECO received a response from Elkhorn City Clerk Nancy B. Jacobson that read in relevant part as follows:

I am writing in regards to your request for records. I apologize for the delay; however, ther [sic] pressing business, which included the election and preparation of the tax roll, diverted my time to these and other matters.

I am in the process of assembling your request and hope to complete it in a timely fashion. In order to fulfill your request of engineering plans, prints, as built drawings, engineering and inspection reports, I am requesting copies from the engineers. As soon as the engineers respond to my request, I will send you the cost of copies. Once, [sic] I receive a check from you covering those costs, I will instruct the engineers to make the copies.

There will also be a charge for time and copies made by City staff. Copies are 25 cents plus tax and staff time is $13.40 per hour.

ECO never received any further response. ECO contacted the Walworth county district attorney's office for assistance in getting a response from the City; on at least two occasions, a Walworth county assistant district attorney contacted the City and urged them to comply with ECO's October 19, 2000 request.

¶ 6. On March 8, 2001, ECO filed a petition for writ of mandamus seeking disclosure of the requested documents and related damages, fees and costs; the circuit court signed the alternative writ of mandamus that same day, compelling the City to provide ECO with the requested information or show cause why not.

¶ 7. On March 23, 2001, ECO received a letter from Jacobson indicating that documents responsive to ECO's records requests were available for inspection and requesting a prepayment of $1137.70 for the City's related labor and copying costs.

¶ 8. On March 26, 2001, the circuit court held a "show cause" hearing. The City conceded a lack of defense to the open records request and agreed to produce the requested documents upon payment by ECO for its labor and copying costs. Based upon this representation, the circuit court declined to make the writ of mandamus absolute. That same day, Olsen paid the City's $1137.70 bill and was provided access to a large box of documents.

¶ 9. Despite these disclosures, Olsen remained suspicious that additional records existed. Olsen went to the city engineer's office to inquire about the existence of additional engineering records regarding ECO's property. While at the office, Olsen spoke with a city employee, who showed him an entire drawer filled with files relating to the utilities on Deere Road near ECO's property. The city employee informed Olsen that the files contained all of the City's engineering records for ECO's property which would include as-built drawings, surveys, assessment notes, field notes and engineering drawings. The city employee informed Olsen that this file had been removed from the city engineer's office and sent to the city clerk's office to be copied in 1997, around the time ECO initiated its civil lawsuit against the City.

¶ 10. ECO's attorney then attempted to contact, via voice mail and a letter, the city attorney to inquire about the documents found in the city engineer's office. On March 29, 2001, the city attorney acknowledged receipt of these inquiries and declared that he was investigating the allegations but would not respond "until [he] ha[d] all of the facts before [him]." That same day, ECO sent a letter to the city attorney reiterating its demand for the records. Neither the City nor its attorney ever responded to this letter. Nor did the City produce any of the documents stored in the city engineer's office.

¶ 11. ECO therefore moved the circuit court to make the writ of mandamus absolute. ECO also requested that it be awarded actual, consequential and punitive damages and costs and attorney's fees associated with its attempts to secure a response from the City to the various open records requests.

¶ 12. After numerous hearings, the circuit court granted ECO's...