Newsrooms rely on fee-shifting statutes when fighting for public records. Here’s why they matter.

The Wisconsin Supreme Court’s recent decision in a public records dispute could have a dramatic impact on government transparency in the state, resulting in fewer requests for records and, as one dissenting justice put it, “a less informed electorate.”

The question at the center of the case, Friends of Frame Park v. City of Waukesha, concerned the issue of attorneys’ fees — specifically, whether the government should be responsible for paying them when a records requestor’s lawsuit leads an agency to turn over public records that were wrongfully withheld, even if it does so voluntarily.

In a 4-3 ruling, the Wisconsin Supreme Court held that a community group was not entitled to recover legal fees from the city of Waukesha under the Wisconsin Open Records Act after its lawsuit seeking access to a draft city contract ultimately prompted officials to make the document public, but without a court order forcing their hand.

The July 6 decision sparked an immediate outcry among government transparency advocates, who worry that the ruling could incentivize agencies to drag records requestors through costly, drawn-out legal battles. The Wisconsin Freedom of Information Council, which submitted a friend-of-the-court brief in the case that was joined by the Reporters Committee, said in a statement that the court’s ruling “is a body blow to the state’s traditions of open government.”

That’s because the issue of attorneys’ fees is not a trivial one. How easy or difficult it is to recover them can sometimes determine whether journalists, news organizations and others take the expensive step of suing a government agency when officials refuse to disclose records in response to a public records request.

Fee-shifting, as it’s commonly known, has long encouraged litigation that serves the public interest, though it has faced its share of legal challenges over the years. Its application in cases involving public records requests is of particular interest to journalists across the nation.

As the journalism industry has faced economic hardship in recent years, the Reporters Committee has frequently argued — in court filings and in letters to public officials — that fee-shifting is an important tool for preserving the public’s right to know.

Fee-shifting: A pathway to citizen-driven public records litigation

In the U.S. legal system, parties are generally expected to cover their own attorneys’ fees no matter the outcome of a case. But this is a sizable barrier for Americans who lack the means to file a lawsuit, as Heath Hooper and Charles N. Davis noted in their 2014 Missouri Law Review article, “A Tiger with No Teeth: The Case for Fee Shifting in State Public Records Law.”

“The problem with this arrangement is that if someone does not have the money to pay for an attorney, that person is less likely to engage in litigation to protect constitutional or statutory rights, even when those rights are plainly violated,” they wrote. “The resultant lack of citizen-driven litigation in state public records and open meetings laws remains a noteworthy weakness in laws that are designed to protect citizen access to governmental proceedings and records.”

To curb these issues, some state legislatures have turned to fee-shifting. When applied to areas of public interest, fee-shifting statutes serve to encourage and reward those who pursue litigation that benefits their fellow citizens. For this reason, they have long been applied to civil rights cases and in other areas where the legal actions of private citizens may help defend the rights of the broader public.

However, even as federal and state legislatures have sought to encourage this kind of litigation, it is far from without risk. For fee-shifting to even be considered, plaintiffs must generally be successful in their case.

In some cases, a records requestor is considered to be successful when a court rules in their favor and orders a government agency to make the records they requested public. In other cases, however, a plaintiff can prevail and be entitled to attorneys’ fees even if an agency discloses records voluntarily, without a court order, after a lawsuit is filed.

It’s a legal concept known as “catalyst theory.” Under this theory, if a court concludes that a records requestor “substantially prevailed” in a public records lawsuit — that is, if the lawsuit was found to be the driving force behind a government agency’s decision to make records public, even absent a court ruling — the government should be on the hook to pay the plaintiff’s fees.

Friends of Frame Park v. City of Waukesha

The legal theory was central to the dispute over attorneys’ fees in Friends of Frame Park v. City of Waukesha, a case in which a local community group sought to obtain records related to plans to build a baseball stadium in a city park.

The city of Waukesha initially withheld a draft contract concerning the construction of a stadium when it was first requested by Friends of Frame Park, claiming that it could not be released until after it was discussed during a Common Council meeting. The community group sued to force the city to turn over the record and cover its attorneys’ fees. A day after the Common Council meeting, the city released the document.

A trial court concluded that the city “properly withheld” the draft contract and that it had no obligation to pay Friends of Frame Park attorneys’ fees. But an appeals court reversed, holding that the city improperly shielded the record by citing an exemption to the public records law that did not apply. As a result, the appeals court concluded that the community group “substantially prevailed” in its lawsuit and that the city should pay a portion of the group’s attorneys’ fees.

The Wisconsin Supreme Court, however, disagreed. In reversing the appeals court’s decision, the four justices in the majority not only found that the city of Waukesha acted properly by delaying the release of the requested record, they rejected the theory that public records requestors could “prevail[] in whole or in substantial part” — and thus recover legal fees — outside of a court ruling in their favor.

Justice Jill Karofsky, one of the three dissenting justices, spelled out the likely consequences of the majority’s ruling.

“By reinterpreting the law to reward government actors for strategically freezing out the public’s access to records, today’s decision will chill the public’s right to an open government,” Karofsky wrote in her dissent. “Absent robust fee shifting, the promise of our public records laws is rendered a dead letter for all but the select few with means, leading to fewer record requests, more delays in the release of information, and, ultimately, a less informed electorate.”

Golden v. New Jersey Institute of Technology

For those reasons, the Reporters Committee has long been an advocate for fee-shifting provisions as a way to promote government transparency, filing multiple friend-of-the-court briefs addressing the issue and supporting legislative efforts to adopt strong fee-shifting provisions.

But perhaps our most high-profile engagement on this issue came in New Jersey, where Reporters Committee attorneys successfully litigated a years-long public records dispute on behalf of Pulitzer Prize-winning journalist Daniel Golden.

In 2015, Golden was working on a book that would become “Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities.” As part of his research, Golden filed a records request under New Jersey’s Open Public Records Act seeking email records from the New Jersey Institute of Technology’s correspondence with the CIA and FBI.

The university didn’t release much in response, taking a cue from the FBI to keep most of the responsive emails under wraps. Later that year, attorneys for the Reporters Committee and Bruce S. Rosen of McCusker, Anselmi, Rosen & Carvelli, P.C. sued the university on behalf of Golden and publicist Tracy Locke for the remaining records. After a legal spat between the FBI and NJIT regarding their respective responsibilities in the case, NJIT released nearly 4,000 pages of previously withheld records.

Golden published his book in October 2017, but it wasn’t nearly two years later that one lingering issue was settled. On Aug. 14, 2019,  the U.S. Court of Appeals for the Third Circuit held that the author and publicist were entitled to recover attorneys’ fees from the university, concluding that “there is no indication in the record that NJIT would have produced the previously withheld documents absent Golden and Locke’s lawsuit.”

*Luke Henkhaus is a former communications intern for the Reporters Committee for Freedom of the Press.