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

Decision Date06 July 2022
Docket Number2019AP96
Citation403 Wis.2d 1,976 N.W.2d 263,2022 WI 57
Parties FRIENDS OF FRAME PARK, U.A., Plaintiff-Appellant, v. CITY OF WAUKESHA, Defendant-Respondent-Petitioner.
CourtWisconsin Supreme Court

For the defendant-respondent-petitioner, there were briefs filed by John M. Bruce and West & Dunn, LLC, Two Rivers. There was an oral argument by John M. Bruce.

For the plaintiff-appellant, there was a brief filed by Joseph R. Cincotta and The Law Offices of Joseph R. Cincotta, Milwaukee. There was an oral argument by Joseph R. Cincotta.

An amicus curiae brief was filed by James A. Friedman, Maxted M. Lenz and Godfrey & Kahn, S.C., Madison, for the Wisconsin Broadcasters Association, the Wisconsin Freedom of Information Council, the Wisconsin Newspaper Association, the Wisconsin Transparency Project, and the Reporters Committee for Freedom of the Press. There was an oral argument by James A. Friedman.

HAGEDORN, J., delivered the majority opinion of the Court with respect to ¶3, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined, an opinion with respect to ¶¶13-24, in which ZIEGLER, C.J., and ROGGENSACK, J., joined, and an opinion with respect to ¶¶1-2, 4-12, 25-38. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. KAROFSKY, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.


¶1 In this public records case, the City of Waukesha denied access to a draft contract with a private entity to protect ongoing negotiations and until it consulted with the City's Common Council. The requester brought a mandamus action seeking access to the withheld contract. Two days later, after a meeting of the Common Council, the City turned over the record to the requester.

¶2 The first issue in this case relates to attorney's fees in public records cases. The parties disagree over the test we should use to determine whether the requester, in the statute's words, "prevail[ed] in whole or in substantial part," and is therefore entitled to attorney's fees. Wis. Stat. § 19.37(2)(a) (2019-20).1 The court of appeals has previously employed a causal-nexus test—querying whether the release of records was caused in some way by the litigation. In this case, where the records custodian voluntarily turned over the requested record, the court of appeals recognized the limitations of a causation-based approach and considered whether the records were properly withheld in the first place. This is the first occasion for this court to fully analyze what it means for a party to "prevail[ ] in whole or in substantial part" under § 19.37(2)(a). Faced with these varying approaches, we conclude we must return the analytical framework to one more closely tethered to the statutory text. The varying tests utilized by the court of appeals in the past do not track the meaning of the words the legislature used.

¶3 Four justices agree that to "prevail[ ] in whole or in substantial part" means the party must obtain a judicially sanctioned change in the parties’ legal relationship. Accordingly, a majority of the court adopts this principle.

¶4 This conclusion arguably raises other statutory questions. Prior court of appeals cases have held that a requester could still pursue attorney's fees even if the records have been voluntarily turned over. This conclusion rested on its causation-based theory, however. The concurrence argues that under the proper statutory test we announce today, a mandamus action becomes moot after voluntary compliance, and record requesters have no separate authority to pursue attorney's fees. We save this issue for another day. Even if record requesters can pursue attorney's fees following release of the requested records, an award of fees would not be appropriate here. This is so because in temporarily withholding the draft contract, the City complied with the public records law. Applying the balancing test, the City pointed to the strong public interest in nondisclosure—namely, protecting the City's negotiating and bargaining position and safeguarding the Common Council's prerogative in contract approval. These considerations outweigh the strong public policy in favor of disclosure. Furthermore, the City recognized the balance of interests would shift after the Common Council meeting, and it properly disclosed the draft contract at that time. Therefore, the City did not violate the public records law. And thus, the requester did not and could not prevail in whole or substantial part in this action. Therefore, no judicially sanctioned change in the parties’ relationship is appropriate and the requester is not entitled to any attorney's fees.


¶5 Friends of Frame Park, U.A. (Friends) is an association composed of several members who own property, work, and pay taxes to the City of Waukesha and make use of City parks, including Frame Park. Friends sent the City a public records request on October 9, 2017, seeking information about the City's plans to bring amateur baseball to Waukesha.2 The request stated in part: "Please include any Letters of Intent (LOI) or Memorandum of Understanding (MOU) 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."

¶6 The City responded two weeks later. It provided all documents responsive to Friends’ request except a draft contract with Big Top Baseball. The City explained its decision to temporarily withhold the document as follows:

A park use contract with Big Top Baseball is presently in draft form. 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, pursuant to Wis. Stats. §§ 19.35(1)(a) and § 19.85(1)(e). This is to protect the City's negotiating and bargaining position. The draft contract is subject to review, revision, and approval of the Common Council before it can be finalized, and the Common Council have 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 - Wis. Stats. § 19.35(1)(a) states that exemptions to the requirement of a governmental body to meet in open session are indicative of public policy in this regard, and Wis. Stats. § 19.85(1)(e) exempts from open session "[d]eliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session." 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 the City.
Because the City's negotiating and bargaining position could be compromised by public disclosure of the draft contract before the Common Council have had an opportunity to consider the draft, after applying the balancing test, the public's interest in protecting that negotiating and bargaining position outweighs the public's interest in disclosing the draft contract at this point. You will get a copy of the contract after the Common Council has taken action on it.

¶7 Friends believed the City improperly withheld the draft contract and knew the use of Frame Park was on the Common Council meeting agenda for December 19, 2017. So the day before the Common Council meeting, in order to preserve its remedies, Friends filed a mandamus action under Wis. Stat. § 19.37(1) seeking production of the draft contract, attorney's fees, and other expenses. The following evening, the City's Common Council met. It is unclear from the meeting minutes whether, or to what extent, the draft contract was discussed. The minutes note the following with respect to Frame Park: "Citizen speakers registering comments against baseball at Frame Park"; the "City Administrator's Report" included a "Northwoods Baseball League Update"; and an "item for next Common Council Meeting under New Business" was to, "Create an ADHOC Committee for the purpose to address Frame Park and Frame Park issues."

¶8 The next day, on December 20, 2017, the City released the draft contract to Friends.3 Consistent with its explanation initially denying release, the City explained the documents "are being released now because there is no longer any need to protect the City's negotiating and bargaining position."

¶9 Friends then amended its complaint, asking the circuit court4 to hold that the City improperly withheld the draft contract. In advance of trial, the City filed a motion for summary judgment which the circuit court granted; Friends did not move for summary judgment. The circuit court concluded the City "properly withheld certain public records temporarily in response to the record request made by [Friends] for the reasons set forth in the letter ... and appropriately relied on Wis. Stat. § 19.85(1)(e) as the basis for doing so under the circumstances of this case." It further concluded that Friends was 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, 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 unwarranted and led to an unreasonable delay in...

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