On May 28, 2014, the Wisconsin Court of Appeals reaffirmed that a governmental body that refuses to abide by the Open Records Law risks being ordered to pay attorney’s fees and costs for those who seek to compel disclosure of those records.  In The Journal Times v. City of Racine Board of Police and Fire Commissioners, Case No. 2013AP1715, (May 28, 2014) (recommended for publication), the Journal Times (“Newspaper”) sought the records of motions and votes from a closed meeting in which the City of Racine Board of Police and Fire Commissioners (“Commission”) considered applicants for the position of police chief.

In denying the Newspaper’s request on public policy grounds, the Commission induced the Newspaper to believe that such records actually existed.  Relying on its belief that the Commission was withholding records that actually existed, the Newspaper challenged the Commission’s reasoning in court, incurring attorney’s fees and court costs along the way.  While the Commission released the records to the Newspaper on March 22, 2012, six days after the Newspaper filed its mandamus complaint, two months into the proceedings the Commission paradoxically argued that no such records ever existed.

The trial court dismissed the action on the grounds that no record responsive to the Newspaper’s request existed.  The Court of Appeals reversed and remanded the trial court’s decision solely for the determination of whether the Newspaper was entitled to attorney’s fees and costs.  The court held that if the mandamus action “was cause of the March 22 release, then the Newspaper is entitled to recover its attorney’s fees and costs.” (Emphasis added.)  The court further held that the Commission, a government entity, was equitably estopped from defending against the request for fees and costs based upon the records’ nonexistence.  This was an unusual turn, as the court acknowledged that it is generally “cautious in applying…equitable estoppel against government entities.”  Yet in this case, where the facts were undisputed, the Court of Appeals determined that all the elements of equitable estoppel had been met and enforced that doctrine against the government.

Municipal entities and other groups covered by the Open Records and Open Meetings laws should take heed of the Court of Appeals’ decision.  Wisconsin law strongly favors disclosure of government records, and the Attorney General’s Opinions, which are to be afforded “substantial weight” in the area of open meetings and open records law, broaden these principles.  In the face of an open records request, government entities should take care not to cause the requester to believe that records responsive to the request exist when in fact they do not.  Further, any time that an entity declines to release records, its reasons should be firmly grounded in statute, common law or public policy and should be set forth in the denial.