The Wisconsin Newspaper Association spoke in favor of Senate Bill 194 during testimony on Wednesday, April 30, before the State Senate Committee on Judiciary and Public Safety.
Joining WNA attorney Max Lenz were co-sponsor Senator Van Wangaard, Wisconsin Freedom of Information Council President Bill Lueders and Wisconsin Institute for Law and Liberty Director of Policy Kyle Koenen.
Lenz, an attorney with Godfrey & Kahn S.C., testified in favor of Senate Bill 194, which seeks to allow petitioners to obtain attorney fees and costs under the state’s public records law when an authority voluntarily or unilaterally releases a contested record after an action has been filed in court.
Lenz said the bill is necessary after a 2022 Supreme Court opinion, Friends of Frame Park, U.A. v. City of Waukesha, held that if a governmental entity releases records AFTER a suit has been filed, but BEFORE a court acted on the case, the requester is not entitled to seek attorney’s fees.
The court based its decision on a narrow interpretation of the word “prevail” in the existing public records statute. The court ruled a judge must affirmatively order a unit of government to turn over public records for a requester to “prevail” and, therefore, be eligible to seek reimbursement for legal fees.
“This ruling actually incentivizes public officials to illegally withhold records, because it forces requesters to incur legal costs that may never be recovered,” Lueders testified. “SB 194 and its companion, AB 190, solves this problem by allowing requesters to recover fees when they can prove that suing was “a substantial factor” in securing the release of public records.”
“The inability to obtain attorney’s fees upon prevailing in an open records lawsuit can make it prohibitively expensive for Wisconsinites to challenge the denial of requests or excessive delays in response times,” Koenen said during his testimony. “As a result, fewer attorneys will be willing to bring open records cases on a contingent fee basis, putting greater transparency and accountability at risk.”
As Wangaard pointed out during his testimony, a similar bill passed the Senate during the last state Legislative session, but the State Assembly failed to act on it.
In addition to Wangaard, the bill is also co-sponsored by State Senators Feyen, Kapenga, Quinn, Roys, Spreitzer, Stafsholt, Nass and Tomczyk; and co-sponsored by Assembly Representatives Novak, Swearingen, Anderson, Armstrong, Behnke, Franklin, Goeben, Gundrum, Gustafson, Kitchens, Knodl, Murphy, Mursau, Nedweski, O’Connor, Rodriguez, Steffen, Tittl, Tranel, Tusler, Wichgers, Wittke and Allen.
The bill has also been publicly supported by a wide cross-section of groups including the Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council, Wisconsin Institute for Law and Liberty, Wisconsin Transparency Project, and Americans for Prosperity – WI .
The WNA thanks its members for contacting state legislators to urge their support for and action in favor of SB 194/AB 190.
