When the Wind Blows

In early July, the Wisconsin Supreme Court issued a decision that reversed decades of precedence regarding the ability of a plaintiff to recover attorney’s fees in an open records mandamus action. Friends of Frame Park, U.A. v. City of Waukesha,[1] holds that a plaintiff in an open records lawsuit can only be awarded legal fees and damages if the lawsuit results in a court order mandating the production of previously withheld records.

Under Wisconsin law, if an authority – a state or local office, elective official, agency, board, department, or any of the entities listed within Wis. Stat. § 19.32(1) – receives an open records request from a requester and subsequently denies access to a record, the requester is entitled to file a mandamus action in circuit court to seek an order for production of that record. The law further provides that a requester is entitled to statutory damages and attorney’s fees “if the requester prevails in whole or substantial part” in their mandamus action. Wis. Stat. § 19.37(2)(a).

Prior to the Wisconsin Supreme Court’s decision in Friends of Frame Park, U.A. v. City of Waukesha, Wisconsin courts had regularly applied a causal nexus test for determining whether the requester “prevailed” such that they were entitled to attorney’s fees in their open records mandamus action. Specifically, courts asked whether the requester’s lawsuit caused the agency to release the records at issue. If the requester could demonstrate that their lawsuit was at least a cause – not necessarily the sole cause – for the production of the records at issue, courts generally held the requester “prevailed” and would be entitled to legal fees under the statute. This causal nexus test, first applied in 1986, was regularly applied throughout Wisconsin courts and generally meant that if an agency produced records after the commencement of an open records mandamus lawsuit, the agency would often be on the hook for at least some of the petitioner’s legal fees.

The Wisconsin Supreme Court’s decision in Friends of Frame Park, U.A. v. City of Waukesha changes over thirty years of precedence and eliminates the causal nexus test previously employed by Wisconsin courts. Relying on the plain language of the statute, the Supreme Court held that in order to “prevail in whole or in substantial part” under the language of the statute, the requester must “obtain a judicially sanctioned change in the parties’ legal relationship.” In light of this holding, a requester will not be entitled to legal fees if they commence an open records mandamus action, and the authority voluntarily produces the record after suit is filed. Rather, a requester will only be entitled to legal fees if the lawsuit resulted in a court order for the production of the withheld record or a determination that the record was improperly withheld.

In coming to its decision, the Wisconsin Supreme Court explored the history of the causal nexus test. Specifically, it noted how the first Wisconsin case[2] to implement the causal nexus test had relied upon a federal court case, Cox v. United States Department of Justice,[3] given the textual similarities between Wisconsin’s Open Records Laws and the Federal Freedom of Information Act. However, the United States Supreme Court subsequently determined that the holding in Cox was incorrect and held that the causal nexus test was not appropriate for determining whether a litigant was a “prevailing party.”[4] Shortly after that United States Supreme Court decision, Congress amended the Freedom of Information Act to state that a party substantially prevails if they obtain relief through a judicial order, consent decree, or enforceable written agreement, or a voluntary or unilateral change in position by the agency that withheld the record. Federal courts interpreted the change to re-allow the causal nexus test that Cox had employed.

The Wisconsin Supreme Court noted, however, that Wisconsin’s statutory language does not include the “voluntary or unilateral change” language that the Freedom of Information Act contains. Therefore, the Court concluded, the plain language of the Wisconsin statute does not support the conclusion that a party prevails if there is a voluntary production. Rather, only “a judicially sanctioned change in the parties’ legal relationship” amounts to prevailing under the law.

The Wisconsin Supreme Court’s decision overrules almost four decades of appellate court decisions but provides clear guidance for open records lawsuits in the future.

[1] Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, 403 Wis. 2d 1, 976 N.W.2d 263.

[2] Racine Educ. Ass’n v. Bd. of Educ. for Racine Unified Sch. Dist., 129 Wis. 2d 319, 385 N.W.2d 510 (Ct. App. 1986).

[3] Cox v. U.S. Dep’t of Justice, 601 F.2d 1 (D.C. Cir. 1979).

[4] See Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Hum. Res., 532 U.S. 598 (2001).