imported post
The rest of the story.
19.37 Enforcement and penalties. (1) MANDAMUS. If an
authority withholds a record or a part of a record or delays granting
access to a record or part of a record after a written request for disclosure
is made, the requester may pursue either, or both, of the
alternatives under pars. (a) and (b).
(a) The requester may bring an action for mandamus asking a
court to order release of the record. The court may permit the parties
or their attorneys to have access to the requested record under
restrictions or protective orders as the court deems appropriate.
(b) The requester may, in writing, request the district attorney
of the county where the record is found, or request the attorney
general, to bring an action for mandamus asking a court to order
release of the record to the requester. The district attorney or attorney
general may bring such an action.
(1m) TIME FOR COMMENCING ACTION. No action for mandamus
under sub. (1) to challenge the denial of a request for access
to a record or part of a record may be commenced by any committed
or incarcerated person later than 90 days after the date that
the request is denied by the authority having custody of the record
or part of the record.
(1n) NOTICE OF CLAIM. Sections 893.80 and 893.82 do not
apply to actions commenced under this section.
(2) COSTS, FEES AND DAMAGES. (a) Except as provided in this
paragraph, the court shall award reasonable attorney fees, damages
of not less than $100, and other actual costs to the requester
if the requester prevails in whole or in substantial part in any
action filed under sub. (1) relating to access to a record or part of
a record under s. 19.35 (1) (a). If the requester is a committed or
incarcerated person, the requester is not entitled to any minimum
amount of damages, but the court may award damages. Costs and
fees shall be paid by the authority affected or the unit of government
of which it is a part, or by the unit of government by which
the legal custodian under s. 19.33 is employed and may not
become a personal liability of any public official.
(b) In any action filed under sub. (1) relating to access to a
record or part of a record under s. 19.35 (1) (am), if the court finds
that the authority acted in a willful or intentional manner, the court
shall award the individual actual damages sustained by the individual
as a consequence of the failure.
(3) PUNITIVE DAMAGES. If a court finds that an authority or
legal custodian under s. 19.33 has arbitrarily and capriciously
denied or delayed response to a request or charged excessive fees,
the court may award punitive damages to the requester.
(4) PENALTY. Any authority which or legal custodian under s.
19.33 who arbitrarily and capriciously denies or delays response
to a request or charges excessive fees may be required to forfeit
not more than $1,000. Forfeitures under this section shall be
enforced by action on behalf of the state by the attorney general
or by the district attorney of any county where a violation occurs.
In actions brought by the attorney general, the court shall award
any forfeiture recovered together with reasonable costs to the
state; and in actions brought by the district attorney, the court shall
award any forfeiture recovered together with reasonable costs to
the county.
History: 1981 c. 335, 391; 1991 a. 269 s. 43d; 1995 a. 158; 1997 a. 94.
A party seeking fees under sub. (2) must show that the prosecution of an action
could reasonably be regarded as necessary to obtain the information and that a “causal nexus” exists between that action and the agency’s surrender of the information. State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 422 N.W.2d 898 (Ct. App. 1988).
If an agency exercises due diligence but is unable to respond timely to a records
request, the plaintiff must show that a mandamus action was necessary to secure the records release to qualify for award of fees and costs under sub. (2). Racine Education Association. v. Racine Board of Education, 145 Wis. 2d 518, 427 N.W.2d 414 (Ct. App. 1988).
Assuming sub. (1) (a) applies before mandamus is issued, the trial court retains discretion to refuse counsel’s participation in an in camera inspection. Milwaukee Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Ct. App. 1989).
If the trial court has an incomplete knowledge of the contents of the public records
sought, it must conduct an in camera inspection to determine what may be disclosed
following a custodian’s refusal. State ex rel. Morke v. Donnelly, 155 Wis. 2d 521, 455
N.W.2d 893 (1990).
A pro se litigant is not entitled to attorney fees. State ex rel. Young v. Shaw, 165
Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991).
A favorable judgment or order is not a necessary condition precedent for finding
that a party prevailed against an agency under sub. (2). A causal nexus must be shown between the prosecution of the mandamus action and the release of the requested information. Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154, 499 N.W.2d 918 (Ct. App. 1993).
Actions brought under the open meetings and open records laws are exempt from
the notice provisions of s. 893.80 (1). Auchinleck v. Town of LaGrange, 200 Wis.
2d 585, 547 N.W.2d 587 (1996), 94−2809.
An inmate’s right to mandamus under this section is subject to s. 801.02 (7), which
requires exhaustion of administrative remedies before an action may be commenced.
Moore v. Stahowiak, 212 Wis. 2d 744, 569 N.W.2d 711 (Ct. App. 1997), 96−2547.
When requests are complex, municipalities should be afforded reasonable latitude
in time for their responses. An authority should not be subjected to the burden and
expense of a premature public records lawsuit while it is attempting in good faith to
respond, or to determine how to respond, to a request. What constitutes a reasonable time for a response by an authority depends on the nature of the request, the staff and other resources available to the authority to process the request, the extent of the request, and other related considerations. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, 05−1473.
The legislature did not intend to allow a record requester to control or appeal a mandamus action brought by the attorney general under sub. (1) (b). Sub. (1) outlines two distinct courses of action when a records request is denied, dictates distinct courses of action, and prescribes different remedies for each course. Nothing suggests that a requester is hiring the attorney general as a sort of private counsel to proceed with the case, or that the requester would be a named plaintiff in the case with the attorney general appearing as counsel of record when proceeding under sub. (1) (b). State v. Zien, 2008 WI App 153, 314 Wis. 2d 340, 761 N.W.2d 15, 07−1930.
Actual damages are the liability of the agency. Punitive damages and forfeitures
can be the liability of either the agency or the legal custodian, or both. Section 895.46
(1) (a) probably provides indemnification for punitive damages assessed against a
custodian, but not for forfeitures. 72 Atty. Gen. 99.
19.39 Interpretation by attorney general. Any person
may request advice from the attorney general as to the applicability of this subchapter under any circumstances. The attorney general
may respond to such a request.
History: 1981 c. 335
