EAU CLAIRE PRESS CO. v. GORDON,

176 Wis.2d 154 (Ct.App. 1993)

499 N.W.2d 918




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EAU CLAIRE PRESS CO. and Janean Marti, Plaintiffs-Appellants, v. Paul GORDON and City of Chippewa Falls, Defendants-Respondents.[fn]
Court of Appeals No. 92-1570. Submitted on briefs January 8, 1993. Ä Decided January 26, 1993. [fn] Petition to review denied.
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APPEAL from a judgment of the circuit court for Chippewa county: 

FREDERICK A. HENDERSON, Judge.  Affirmed in part; reversed in

part and cause remanded.



On behalf of the plaintiffs-appellants, the cause was submitted

on the briefs of Linda M. Clifford of LaFollette & Sinykin of

Madison.



On behalf of the defendants-respondents, the cause was submitted

on the brief of Paul Gordon of Chippewa Falls.



Before Cane, P.J., LaRocque and Myse, JJ.



CANE, P.J.



The Eau Claire Press Co. and Janean Marti (the newspaper) appeal

a judgment denying them attorney fees, costs, damages and

punitive damages under Section 19.37, Stats., the state open

records law.



We conclude that the newspaper is entitled to its attorney fees,

costs and damages under Section 19.37 because the mandamus action

it initiated was a substantial factor in causing the city to

release the requested information.



However, it is not entitled to punitive damages because the city

did not arbitrarily or capriciously deny or delay its response to

the newspaper's request.



On May 30, 1991, the newspaper requested from the city of

Chippewa Falls documents regarding the settlement of a

discrimination claim by Pat Brick against the city.



On June 10 and 26, 1991, the city attorney denied the request,

citing a confidentiality agreement the city had made with Brick.



The city's denial relied on its determination that "the harm to

the public interest that would result from disclosure outweighs

the great public interest in full inspection of public records."
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After the newspaper contacted the Chippewa County district

attorney, the district attorney on August 27, 1991, advised

the city attorney in writing that the records were wrongfully

withheld and should be released.



However, on August 30, 1991, Brick's attorney demanded

that the city honor the confidentiality agreement.



On September 24, 1991, the Wisconsin attorney general

wrote the city attorney to advise him that the records

were wrongfully withheld and should be released.



On October 8, 1991, Brick's attorney stated that Brick's

position remained unchanged and that Wisconsin caselaw stated

that Brick had a right to keep the documents classified.



On November 5, 1991, the newspaper commenced a mandamus action

under Section 19.37(1), Stats., and the district attorney

threatened legal action, again advising the city attorney

to release the requested records.



The city answered, admitting all of the

material facts underlying the claim.



On December 18, 1991, the newspaper filed a motion

for judgment on the pleadings.



That same day, the city attorney sent a letter to the newspaper

summarizing the terms of the settlement between Brick and the

city, but failed to produce the actual records.



On January 29, 1992, after Brick agreed not to consider

the release a breach of the settlement agreement,

the city finally released the documents.



The newspaper moved for its reasonable attorney fees, actual

costs, damages and punitive damages under Section 19.37(2) and

19.37(3), Stats.  The motion was heard without testimony.



With consent of both parties, the court based its decision

on the pleadings and on affidavits, exhibits and

responses to requests for admission.



The trial court decided that the mandamus action was not a

substantial factor in causing the city's release of the

settlement records.
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It therefore entered a judgment denying the newspaper's

motion for attorney fees, costs, damages and punitive damages.



The newspaper appeals this judgment.



Section 19.37, Stats., governs enforcement

and penalties under the open records law.



Section 19.37(1) provides for a mandamus action by the requester

if records are wrongfully withheld by an authority.



Section 19.37(2) governing costs, fees and damages

under such mandamus actions states:



19.37(2)  Costs, fees and damages.



19.37(2)(a)    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 Subsection 19.37(1)    

               relating to access to a record

               or part of a record under

               Section 19.35(1)(a).



Section 19.37(3) governs punitive damages and states:



19.37(3)  Punitive damages.



          If a court finds that an authority or legal

          custodian under Section 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.



The newspaper first argues that it is entitled to costs,

attorney fees and damages of not less than $100 because

it prevailed in substantial part in its mandamus action

causing the city to release the documents.



Because the purpose of Section 19.37, Stats., is to encourage

voluntary compliance, a judgment or an order favorable in whole

or in part in a mandamus action is not a necessary condition

precedent to a finding that a party prevailed against

an agency under Section 19.37(2).





Racine Educ. Ass'n v. Board of Educ.,

129 Wis.2d 319, 328,

385 N.W.2d 510, 513 (Ct. App. 1986).
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If the governmental entity can force a party into litigation and

then deprive the party of the right to recover expenses by later

disclosing, it would render the statute's purpose inoperative.



Id.



Thus, a court order compelling disclosure of the requested

information is not a condition precedent to an award of fees.



Id. at 326, 385 N.W.2d at 512.



Therefore, the newspaper in seeking its expenses for the mandamus

action must show that its prosecution could reasonably be

regarded as necessary to obtain the information and

that a causal nexus exists between that action and

the city's surrender of the requested information.



See



State ex rel. Vaughan v. Faust,

143 Wis.2d 868, 871,

422 N.W.2d 898, 899 (Ct. App. 1988).



The test of cause in Wisconsin is whether the actor's action

was a substantial factor in contributing to the result.



Id.



Normally, whether a party has made the requisite showing under

Section 19.37(2), Stats., is a factual determination that is

within the province of the trial court.



Racine Educ. Ass'n v. Board of Educ.,

145 Wis.2d 518, 522,

427 N.W.2d 414, 416 (Ct. App. 1988)

(citing Cox v. United States Dep't of Justice,

601 F.2d 1, 6 (D.C. Cir. 1979)).



A trial court's factual findings will not be

overturned unless they are clearly erroneous.



Section 805.17(2), Stats.  Here, however, the causation question

is an inference drawn from undisputed or established facts.



In Vaughan, we held that where the existence of causation is an

inference to be drawn by the trier of fact from undisputed or

established facts, we will apply the reasonableness standard.



Id. at 871, 422 N.W.2d at 899.



That is, we will affirm the trial court's finding unless

we find that the inference drawn by the trial court may

not reasonably be drawn from the established evidence.
Id.
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The trial court determined that the newspaper had not

substantially prevailed in the mandamus action.



The court wrote:



     The defendants released the terms of the settlement    

     agreement not because of the filing of the instant

     lawsuit but because Pat Brick, through his attorney,

     had represented to the defendants that he would not

     consider the release a breach of the

     settlement agreement.



     The Court finds the mandamus action was not necessary

     and was not a substantial factor in the production

     of the settlement records.



The inference drawn by the trial court from the undisputed

facts is that the mandamus action was not a substantial

factor in the production of the documents.



We must determine whether this was a reasonable

inference for the trial court to make.



We conclude that it was not.



The newspaper first asked for the documents on May 30, 1991,

and the city denied the request based on the

Brick settlement agreement.



Letters to the city from both the Chippewa County

district attorney and the Wisconsin attorney general

stated that the settlement agreement was not a valid

reason for the city to withhold the documents.



The letters, however, did not convince the

city to release the documents.



On November 5, 1991, more than five months after first requesting

the documents, the newspaper filed the mandamus action.



The documents were finally released in January of 1992.



The trial court ruled that the documents were released as a

result of Brick's representation that he would not consider the

documents' release a breach of the settlement agreement.



However, even assuming the city would not turn over the documents

until given permission by Brick, the inference drawn by the trial

court ignores the fact that the representation from Brick was

substantially caused by the mandamus action.
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The newspaper's initial request did not cause Brick

to make such representation.



Neither did the letters from the Chippewa County district

attorney and the Wisconsin attorney general.



The city itself argues that even after the letters, Brick

continued to contend, under



Village of Butler v. Cohen,

163 Wis.2d 819,

472 N.W.2d 579 (Ct. App. 1991),



that he had the right to keep the settlement confidential.



Only after the mandamus action had begun and was pending did

Brick give permission to the city to turn over the documents.



The city concedes that in November or early December,

Brick's attorney informed it that Brick would not file

an action against the city if it released the information.



Moreover, independent of Brick's representation regarding the

confidentiality agreement, the virtual certainty of the success

of the mandamus action, as demonstrated by the letters from the

district attorney and the attorney general, was also a

substantial factor in the release of the documents.



Regardless of the role Brick played in the city's decisionmaking

process, the only reasonable inference that can be drawn from

the undisputed facts is that the mandamus action was a

substantial factor in the release of the documents.



Therefore, we reverse this part of the trial court's order

and remand this action for a determination of attorney fees,

costs and damages.



The newspaper also argues that it is

entitled to punitive damages.



The trial court denied punitive damages because the city

did not act arbitrarily and capriciously in delaying

the release of the requested information.
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See Section 19.37(3), Stats.



Where, as here, the facts have been established, whether

a decision is arbitrary or capricious is a question of law.





State ex rel. Young v. Shaw,

165 Wis.2d 276, 294,

477 N.W.2d 340, 347 (Ct. App. 1991).



A decision is arbitrary and capricious if it lacks a rational

basis or results from an unconsidered, willful and irrational

choice of conduct.



Id.



The city in this instance was in a no-win situation because

it had previously agreed with Brick to keep

the records confidential.



Although the city made a promise it could not keep,

we analyze the city's conduct not when it made the

promise but, rather, when it refused disclosure.



The city's conduct was based on a rational basis, its opinion

that it must honor the Brick confidentiality agreement.



While the city should have turned over the documents, we agree

that its refusal was not arbitrary or capricious and therefore

affirm the trial court's judgment in that regard.



By the Court. Ä Judgment affirmed in part; reversed in

part and cause remanded.  No costs to either party.
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RELATED CASE LAW:

WTMJ, INC. v. SULLIVAN,
204 Wis.2d 452 (Ct.App. 1996)
555 N.W.2d 140

EAU CLAIRE PRESS CO. v. GORDON,
176 Wis.2d 154 (Ct.App. 1993)
499 N.W.2d 918
 

UNPUBLISHED RELATED DECISONS:

STATE v. PIASKOWSKI, (Ct.App. 1998)
 
STATE v. TURCOTTE,   (Ct.App. 1997)

BLACK v. SWOBODA,    (Ct.App. 1996)