Friends of Frame Park, U.A. v. City of Waukesha

Citation2020 WI App 61,394 Wis.2d 387,950 N.W.2d 831
Decision Date16 September 2020
Docket NumberAppeal No. 2019AP96
Parties FRIENDS OF FRAME PARK, U.A., Plaintiff-Appellant, v. CITY OF WAUKESHA, Defendant-Respondent.
CourtCourt of Appeals of Wisconsin

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Joseph R. Cincotta of Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of John M. Bruce of West & Dunn, LLC of Two Rivers.

Before Neubauer, C.J., Gundrum and Davis, JJ.

DAVIS, J.

¶1 This is a public records case involving a draft contract, exchanged between Defendant-Respondent City of Waukesha (the City) and a private entity, Big Top Baseball, LLC (Big Top), setting forth proposed terms under which Big Top's professional baseball team would play in a stadium to be constructed in Waukesha's Frame Park. Plaintiff-Appellant Friends of Frame Park, U.A. (Friends), a community organization, was rebuffed in its attempt to obtain the draft contract from the City and sought a writ of mandamus. The City then released the record and, some months later, moved for summary judgment. The trial court granted the City's motion, reasoning that the City properly relied on a public records law exception to initially withhold the draft contract and that in any event, Friends’ lawsuit did not cause the record's eventual release (i.e., Friends was not a "prevailing party" entitled to attorney fees). Friends now appeals.

¶2 At the outset, we acknowledge that the City voluntarily released the draft contract shortly after Friends filed suit. Ordinarily, where a party obtains the relief it seeks while litigation is pending, the case becomes moot. In public records cases, however, the relief sought typically includes more than the release of records—it also includes the requesting party's attorney fees. The public records statute allows fees to a requesting party who "prevails in whole or in substantial part." WIS. STAT. § 19.37(2)(a).1 Thus the issue before us is whether Friends substantially prevailed in this action.

¶3 The test most often invoked to determine the prevailing party in a public records case is based on causation; it asks whether the lawsuit is "a cause, [if] not the cause, of the records’ release." WTMJ, Inc. v. Sullivan , 204 Wis. 2d 452, 459, 555 N.W.2d 140 (Ct. App. 1996). Here, the City denies that the lawsuit caused the release. Instead, the City maintains, it released the record because the statutory exception it initially invoked (allowing records to be withheld for "competitive or bargaining reasons") no longer applied.2

¶4 We hold that where litigation is pending and an authority3 releases a public record because a public records exception is no longer applicable, causation is not the appropriate inquiry for determining whether the requesting party has "substantially prevailed." Rather, the key consideration is whether the authority properly invoked the exception in its initial decision to withhold release. This result follows from the language of the statute, which requires compliance with a records request "as soon as practicable and without delay." See WIS. STAT. § 19.35(4)(a). A plaintiff with standing to seek a withheld record in a mandamus action should generally be considered to have "substantially prevailed" where it demonstrates a violation of this statute; that is, an unreasonable delay caused by the improper reliance on an exception. In reaching this result, however, we must reconcile what, at least superficially, appears to be inconsistent language from prior decisions addressing how and whether a public records plaintiff can recover attorney fees following voluntary release during litigation.

¶5 Application of this rule leads us to reverse. We hold that the City's reliance on the "competitive or bargaining reasons" exception was unwarranted and led to an unreasonable delay in the record's release. Consequently, even if the lawsuit was not an actual cause of the release, Friends has "prevail[ed] in whole or in substantial part" and is entitled to some portion of its attorney's fees, to be determined under the parameters set forth herein.

Factual Background

¶6 Friends is a Wisconsin unincorporated association that formed in 2017 because its members—Waukesha citizens, property owners, and taxpayers—were interested in the City's purported plan to build and operate a baseball stadium in Frame Park in the City of Waukesha. One concern was that the City might contract with private entities, Big Top and Northwoods League Baseball (Northwoods League), to run the stadium and its baseball team. Big Top owned several baseball teams and operated another stadium in Wisconsin; the Northwoods League owned the league in which these teams played. Friends was interested in the details of the plan, such as how taxpayer funds would be used and to what extent Big Top would profit from the project.

¶7 On October 9, 2017, Friends submitted a public records request to Kevin Lahner, the City Administrator, seeking "any Letters of Intent ... or Memorandum of Understanding ... or Lease Agreements between Big Top Baseball and[/]or Northwoods League Baseball and the City of Waukesha during the time frame of 5-1-16 to the present time frame."4 Two weeks later, the City attorney responded by letter, denying the request. The letter explained that "[a] park use contract with Big Top Baseball is presently in draft form." The letter then articulated two rationales, somewhat overlapping, for withholding this "draft contract." Both rationales relied on WIS. STAT. §§ 19.35(1)(a) and 19.85(1)(e). Under § 19.35(1)(a), "any requester has a right to inspect any record," but exceptions to the open meetings law under § 19.85 may constitute grounds for denying access. Section 19.85(1)(e), in turn, permits closed meetings (and thus, potentially, nondisclosure of records) "whenever competitive or bargaining reasons [so] require."

¶8 The letter's first rationale for nondisclosure was that another entity was competing with the City for a baseball team:

Because the contract is still in negotiation with Big Top, and there is at least one other entity that may be competing with the City of Waukesha for a baseball team, the draft contract is being withheld from your request .... This is to protect the City's negotiating and bargaining position.

The implication was that disclosure would either cause the City to lose the baseball team to the "other entity" referenced or force the City to contract on less favorable terms to secure the team.

¶9 A second, related rationale was that disclosure prior to the Waukesha common council review would hamper the City's ability to negotiate favorable terms within the draft contract:

The draft contract is subject to review, revision, and approval of the Common Council before it can be finalized, and the Common Council have [sic] not yet had an opportunity to review and discuss the draft contract. Protecting the City's ability to negotiate the best deal for the taxpayers is a valid public policy reason to keep the draft contract temporarily out of public view .... There currently is a need to restrict public access for competitive and bargaining reasons until the Council has an opportunity to review the draft and determine whether it wants to adopt it or set different parameters for continued negotiations with the interested parties. If the contract's terms were made public, it would substantially diminish the City's ability to negotiate different terms the Council may desire for the benefit [of] the City.

The obvious implication was that the public could react to the draft contract in ways that might undermine the City's ability to negotiate the common council's preferred terms.

¶10 On December 18, 2017, Friends filed suit under WIS. STAT. § 19.37(1)(a), which permits a requester to "bring an action for mandamus asking a court to order release of the record" where "an authority withholds a record ... or delays granting access to a record ... after a written request for disclosure is made." Section 19.37(2)(a) further provides that "the court shall award reasonable attorney fees ... and other actual costs to the requester if the requester prevails in whole or in substantial part in any action filed under [ § 19.37(1)(a) ] relating to access to a record ... under [ WIS. STAT. §] 19.35(1)(a)."

¶11 The common council met the next day, on December 19. Council members had yet to view the draft contract, but it was anticipated that the contract would be shared and debated at the meeting. From our review of the record, however, it is unclear what (if anything) was actually discussed and decided on this topic. The meeting minutes merely state that there were "[c]itizen speakers registering comments against baseball at Frame Park"; that the "City Administrator's Report" included a "Northwoods Baseball League Update"; and that an "Item for next Common Council Meeting under New Business" was "Create an ADHOC Committee for the purpose to address Frame Park and Frame Park issues." There is nothing else in the record to indicate whether the common council saw, discussed, or approved the draft contract at the meeting.

¶12 On the following day, December 20, the City attorney e-mailed Friends and attached the draft contract. The parties do not dispute that this document was created by and shared among Big Top and City representatives in a back-and-forth exchange.5 The City attorney's e-mail explained that the document was "being released now because there is no longer any need to protect the City's negotiating and bargaining position."

¶13 Although Friends had now received the draft contract just two days after filing suit, the litigation continued, including with discovery and motion practice. Perhaps this is because the document was only one of several requested: Friends filed additional requests on December 8, 2017, and on January 25, February 2, and March 6, 2018. Friends also...

To continue reading

Request your trial
5 cases
  • Friends of Frame Park, U.A. v. City of Waukesha
    • United States
    • Wisconsin Supreme Court
    • 6 July 2022
    ...fees under Wis. Stat. § 19.37(2).5 ¶10 Friends appealed, and the court of appeals reversed. Friends of Frame Park, U.A. v. City of Waukesha, 2020 WI App 61, 394 Wis. 2d 387, 950 N.W.2d 831. The court concluded that the City's reliance on the negotiating and bargaining "exception was unwarra......
  • Friends of Frame Park v. City of Waukesha
    • United States
    • Wisconsin Supreme Court
    • 6 July 2022
    ...not entitled to attorney's fees under Wis.Stat. § 19.37(2).[5] ¶10 Friends appealed, and the court of appeals reversed. Friends of Frame Park, U.A. v. City of Waukesha, 02 0 WI.App. 61, 394 Wis.2d 387, 950 N.W.2d 831. The court concluded that the City's reliance on the negotiating and barga......
  • Meinecke v. Thyes
    • United States
    • Wisconsin Court of Appeals
    • 7 July 2021
    ...entity until requester filed a mandamus action). Fees also have been available for partial productions. See Friends of Frame Park, U.A. v. City of Waukesha , 2020 WI App 61, ¶¶52-53, 394 Wis. 2d 387, 950 N.W.2d 831, review granted , (WI Feb. 24, 2021) (No. 2019AP96) (requester obtained one ......
  • Meinecke v. Thyes (In re Denial of Costs in Meinecke)
    • United States
    • Wisconsin Court of Appeals
    • 7 July 2021
    ...Fees also have been available for partial productions. See Friends of Frame Park, U.A. v. City of Waukesha, 2020 WI App 61, ¶¶52-53, 394 Wis. 2d 387, 950 N.W.2d 831, review granted, (WI Feb. 24, 2021) (No. 2019AP96) (requester obtained one of five requested records); State ex rel. Young v. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT