Times v. City of Racine Bd. of Police & Fire Comm'rs

Decision Date18 June 2015
Docket NumberNo. 2013AP1715.,2013AP1715.
Citation866 N.W.2d 563,362 Wis.2d 577
PartiesThe JOURNAL TIMES and Steve Lovejoy, Plaintiffs–Appellants–Cross Petitioners, v. CITY OF RACINE BOARD OF POLICE AND FIRE COMMISSIONERS, Defendant–Respondent–Petitioner.
CourtWisconsin Supreme Court

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.



¶ 1 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 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 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 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 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 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 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 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...

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