RACINE ED. ASS'N v. RACINE BD. OF ED.,
145 Wis.2d 518 (Ct.App. 1988)
427 N.W.2d 414
RACINE EDUCATION ASSOCIATION, and
James Ennis, individually, and as
Executive Director of the
Racine Education Association,
Ben Ewers, individually, and as
Assistant Executive Director of the
Racine Education Association,
BOARD OF EDUCATION FOR RACINE UNIFIED SCHOOL DISTRICT,
Don P. Woods, Superintendent of the
Racine Unified School District, and
Del Fritchen, Assistant Supervisor of the
Racine Unified School District,
Court of Appeals No. 87-1694.
Submitted on briefs May 12, 1988.
Decided June 15, 1988.
[fn] Petition to review denied.
APPEAL from a judgment of the circuit court for Racine county:
JOHN C. AHLGRIMM, Judge. Reversed.
On behalf of the defendants-appellants, the cause was submitted
on the briefs of Gilbert J. Berthelsen, and Jeffrey Leavell of
Capwell-Berthelsen, of Racine.
On behalf of the plaintiffs-respondents, the cause was submitted
on the brief of Robert K. Weber of Schwartz, Weber, Tofte &
Nielsen, of Racine.
Before Scott, C.J., Brown, P.J., and Nettesheim, J.
Racine Education Association (REA) brought a mandamus action to
compel the Board of Education for the Racine Unified School
District (the board) to release certain records.
During the pendency of the action, the board released the records
to REA and the trial court dismissed the action as moot.
On appeal, we agreed that the action was moot but remanded for a
determination of REA's possible entitlement to attorney's fees.
Racine Educ. Ass'n v. Board of Educ.,
129 Wis.2d 319, 322,
385 N.W.2d 510, 511 (Ct. App. 1986).
Although Judge James Wilbershide had been the trial judge prior
to appeal, the case was "reassigned" after remand to Judge John
No further evidence was taken.[fn1]
Judge Ahlgrimm reviewed the documentary evidence and the
transcripts of testimony taken before Judge Wilbershide.
Judge Ahlgrimm ruled that REA was entitled to attorney's fees
because: (1) the prosecution of the mandamus action was
reasonably necessary for REA to obtain the records; and (2) the
prosecution caused the release of the records.
We disagree and accordingly reverse.
Additional background of the case can be found in Racine Educ.
Ass'n, 129 Wis.2d at 322-23, 385 N.W.2d at 511, the facts of
which are adopted as part of this opinion.[fn2]
We begin by establishing the appropriate standard of review.
Typically, a trial court's findings will not be overturned unless
See Section 805.17(2), Stats. The rationale for this deferential
review is the ability of the trial court to observe the demeanor
of the witnesses and make credibility assessments therefrom.
See In re Dejmal, 95 Wis.2d 141, 151-52, 289 N.W.2d 813, 818
(1980); see also D. Walther, P. Grove & M. Heffernan, Appellate
Practice and Procedure in Wisconsin Section 3.5 (1986).
Here, Judge Ahlgrimm did not have an opportunity to observe the
Because this case "swapped horses in midstream," Judge Ahlgrimm
had only the documentary evidence before him, as we now have
Therefore, in this particular instance, Judge Ahlgrimm was in no
better position than we are now to make findings of fact.
When the evidence to be considered is documentary, as it is here,
we need not give any special deference to the trial court's
See State ex rel. Sieloff v. Golz, 80 Wis.2d 225, 241, 258 N.W.2d
700, 705 (1977).
Our review becomes de novo. See id.[fn3]
Our earlier opinion in this case set forth the standards to be
used in determining whether REA was entitled to attorney's fees.
The applicable statute, Section 19.37(2), Stats., reads in part:
COSTS, FEES AND DAMAGES.
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).
To determine the meaning of "prevails in whole or in substantial
part," we adopted the analysis of Cox v. United States Department
of Justice, 601 F.2d 1 (D.C. Cir. 1979), which held:
[T]he party seeking such fees in the absence of a court order
[compelling disclosure] must show that prosecution of the 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.
Whether a party has made such a showing in a particular
case is a factual determination that is within
the province of the district court to resolve.
In making this determination, it is appropriate for the district
court to consider, inter alia, whether the agency, upon actual
and reasonable notice of the request, made a good faith effort
to search out material and to pass on whether it should be
disclosed. . . . If rather than the threat of an adverse
court order either a lack of actual notice of a request
or an unavoidable delay accompanied by due diligence
in the administrative processes was the actual reason
for the agency's failure to respond to a request,
then it cannot be said that the complainant
substantially prevailed in his suit.
Racine Educ. Ass 'n,
129 Wis.2d at 327,
385 N.W.2d at 512-13 (quoting Cox, 601 F.2d at 6)
Therefore, the mere fact that disclosure happened
after filing the mandamus action Ä post hoc, ergo
propter hoc Ä is not enough.
Id. at 326, 385 N.W.2d at 512.
We noted in the earlier opinion that these factual
questions needed to be resolved by the trial
court and we remanded for that purpose.
It is ironic that we now give no deference to those findings
based on our de novo review, but we did not anticipate
the turn in events caused by the change of judges.
After examining the record, including the voluminous contents
of the exhibits, and considering the arguments of the parties,
we conclude that REA has not shown a sufficient causal nexus
between the prosecution of the mandamus action and the board's
release of the records.
Even before the filing of the action, the request for records
had been given a high priority and was diligently, if not
expediently, being worked on by several
The board's position throughout has been that it was not required
to turn over the information to REA, but was doing so voluntarily
because the board was preparing the same information for the
Wisconsin Employment Relations Commission anyway.
The record reveals that the board never considered withholding
information from REA or delaying the process.
REA makes much of the fact that it never received any indication
from the board regarding the records request.
However, the transcripts also show that REA never inquired
of the board either, despite regular contacts
between their respective personnel.
We also note that Wisconsin's Public Records Law does not
explicitly require the board to notify REA, the requester,
as long as the board "fill[s] the request" and does
so "as soon as practicable and without delay."
See Section 19.35(4)(a), Stats.
In this regard, Wisconsin's law differs
from the federal counterpart -
the Freedom of Information Act.[fn4]
Here, we conclude that the request
was filled as soon as practicable.
If the failure to timely respond to a request was caused
by an unavoidable delay accompanied by due diligence in the
administrative processes, rather than being caused by the
mandamus action, the plaintiff has not substantially prevailed.
See Racine Educ. Ass'n,
129 Wis.2d at 327,
385 N.W.2d at 513.
We conclude this is the case here.
The board presented evidence that three computer programs
had to be written to extract the information
from the archived computer tapes.
There were duplication errors and the usual
program "bugs" to be corrected.
REA counters by contending that the board could have turned over
existing paper documents for examination from which REA could
extract the information.
However, we have examined the contents of these documents and
concur with the testimony presented by the board that it would
have taken three times longer to extract the information from
these documents than from the computer records.
Turning over these documents could arguably have met the letter
of the law but not its spirit, as REA likely would not have
been able to extract the information prior to the very
election for which the information was sought
We therefore conclude from our de novo review that REA
did not meet its burden of proving that the prosecution
of the mandamus action was reasonably necessary to obtain
the release of the records.
As causation has not been adequately shown, it cannot be said
that REA "prevail[ed] in whole or in substantial part."
Section 19.37(2), Stats.
We therefore reverse the trial court's judgment
which awarded attorney's fees to REA.
By the Court. Ä Judgment reversed.
[fn1] The board raises a question as to the
propriety of disallowing further evidence.
However, the record reveals that counsel for the
board informed Judge Ahlgrimm and opposing counsel
at a hearing that there had been an agreement to
close the evidence.
[fn2] The board raises a threshold issue, namely,
that the information requested by REA
was not a "record" as defined by
Wisconsin's Public Records Law.
The board's argument is twofold.
First, it alleges it was required
to create a record contrary to
Section 19.35(1)(l); Stats.
Second, it notes that certain information was
in the hands of an independent contractor.
REA greatly disputes whether the board had to
create a record to accommodate REA's request,
and we do not see a need to decide this issue
Nor does our disposition of this appeal
require a resolution of the status of
information held by an independent
contractor; however, we do note that there
may exist a genuine question as to whether
this information constitutes a public record.
See Section 19.32(1), (2), Stats.
[fn3] If the same decision on attorney's fees had
been made by Judge Wilbershide, who had the
opportunity to observe the witnesses and
assess their credibility, our standard
of review would have been whether
the findings supporting the
decision were clearly erroneous.
Section 805.17(2), Stats.
Had our review been limited by the "clearly
erroneous" standard, the outcome of this
appeal probably would have been different.
[fn4] Section 19.35(4)(a), Stats., reads:
Each authority, upon request for any record,
shall, as soon as practicable and without
delay, either fill the request or notify the
requester of the authority's determination to
deny the request in whole or in part and the
[Emphasis added.] In part, 5 U.S.C. Section
552(a)(6)(A) (1982) reads: Each agency, upon
any request for records made under paragraph
(1), (2), or (3) of this subsection, shall Ä
(i) determine within ten days . . . after the
receipt of any such request whether to comply
with such request and shall immediately
notify the person making such request of such
determination and the reasons therefor . . .
. [Emphasis added.]
END OF DECISION