MADISON, Wis. (CN) - A newspaper that sued over ultimately nonexistent records faced a tough Wisconsin Supreme Court hearing Wednesday in its bid for attorneys' fees.
The Journal Times had made the demand of Racine for records stemming from a Feb. 20, 2011, closed meeting of the city's board of fire and police commissioners regarding the selection of a new police chief.
Details on the case appear in a ruling last year from the Wisconsin Court of Appeals that directs the lower court to determine whether the commissioners should pay the Times attorneys' fees.
Racine held the meeting after one of the three candidates, who happened to be the only white candidate, withdrew his application. After the meeting, the city announced that it would broaden the search and accept new applications.
With the Journal Times requesting a record of the motions and votes from the closed meeting, a deputy city attorney refused, citing caselaw that he used to equate deliberation with voting. Since the deliberations were closed, the latter was thus not public record, that official's letter suggested.
When the newspaper asked the board to reconsider, the attorney cited the commissioners' safety concerns and the "inaccurate perception that discrimination has played some role" in the hiring process. He said releasing the information would only compound that implication.
As a "compromise," the attorney offered to release the information five days after announcement of the hire, according to the 2014 opinion.
When the newspaper declined and filed suit, the city released the voting information six days later.
Later in response to the mandamus petition, the city told the Times that no record responsive to the newspaper's request ever existed.
The trial court in turn dismissed the newspaper's action.
In the interim, the commissioners reversed the finding of the secret Feb. 20, 2011, meeting and hired one of the two finalists of color.
At a hearing on whether the newspaper can seek attorneys' fees Wednesday, Rebecca Mason, arguing on behalf of the board, told the Wisconsin Supreme Court that the state Open Meetings Law applies to records only, not information.
It does not require an entity to create a record to satisfy a request, Mason said.
"Without the records, there is no remedy," she said.
Describing the Feb. 20 meeting as brief and informal, Mason said the commissioners - citizen volunteers - did not formally record and approve minutes until months later because the board's secretary appeared by phone.
The board had the voting information, but no written record of the meeting when the lawsuit was filed.
Mason said the first responses to the newspaper's requests were valid, but not the best and most accurate reason for denial by the board.
"It neglected to realize there was an even better response: there was no record," she told the court.
Because there were no records to be withheld, Mason said there is no legal basis to award the paper fees for its meritless lawsuit.
Dustin Brown with Godfrey & Kahn told the court that the case was bigger than attorney's fees. He urged the court to decide whether a governmental entity still has immunity if it does not disclose that no record exists.
Since the newspaper had no way of knowing that no record existed when it filed suit, it continued under the assumption that the board was withholding public information, Brown said.
"That's simply inappropriate and it's something that has to be enforced at every level of government," Brown said.
Criticizing this argument, Justice Ann Walsh Bradley said it could unfairly hold a municipality liable for a mistake made by an uninformed and overworked public servant.
"It almost is like a 'gotcha,' and we don't want that either, do we?" Bradley asked.
Brown replied that, no matter how many "sympathetic characters" may be involved, a government's duty to correctly inform the public on open-records matters is too important to ignore.
"They represent the government," he said. "They're making consequential decisions."
Indeed, Mason argued, keeping the public informed is an important Wisconsin tradition - which is why the board went "above and beyond" and issued a press release after the meeting and voting information after the hire, just as it had told the paper it would.
Justice David Prosser was not present for the hearing.
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