RACINE ED. ASS'N v. RACINE BD. OF ED.,

145 Wis.2d 518 (Ct.App. 1988)

427 N.W.2d 414






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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, Plaintiffs-Respondents,[fn] v. 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, Defendants-Appellants.
Court of Appeals No. 87-1694. Submitted on briefs May 12, 1988. Decided June 15, 1988. [fn] Petition to review denied.
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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.



SCOTT, C.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.
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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

C. Ahlgrimm.



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]
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We begin by establishing the appropriate standard of review.



Typically, a trial court's findings will not be overturned unless

clearly erroneous.



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

witnesses first-hand.



Because this case "swapped horses in midstream," Judge Ahlgrimm

had only the documentary evidence before him, as we now have

before us.



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

findings.



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.
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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.
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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 departments simultaneously. 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]
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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
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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

          with finality.



          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

          reasons therefor.



          [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




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