State groups back former trustee in legal fight with village

Several prominent state organizations have joined a former Grafton trustee in her ongoing legal fight with the village over public records.

The Wisconsin Transparency Project, a law firm dedicated to enforcing open-records law, last week filed a brief on behalf of former Grafton Village Board member Susan Meinecke that appeals a January decision by Ozaukee Circuit Judge Sandy Williams in an open-records case brought by Meinecke in February 2019.

At issue is Williams’ ruling that although Meinecke was entitled to some records withheld by the village, the village was not obligated to pay her more than $16,000 in legal fees and costs.

Under the Wisconsin Open Records Law,  public-record custodians are liable for the legal fees of people who “prevail in whole or substantial part” in open-record lawsuits.

“I’ve never heard of a party who gets a court order directing the custodian to turn over some records but isn’t a prevailing party under the statute,” Thomas Kamenick, founder and president of the Wisconsin Transparency Project, said this week.

“It’s really surprising to see a circuit court deny Sue Meinecke’s fees even after she got an award.”

Also weighing in on Meinecke’s appeal are the Wisconsin Freedom of Information Council, Wisconsin Newspaper Association and Wisconsin Broadcasters Association, which have filed a brief in the case.

“The categorical fee denial is not only inconsistent with the Open Records Law — it threatens enforcement of the law more generally,” Christa Westerberg, an attorney and co-vice president of the Wisconsin Freedom of Information Council, wrote in her brief. 

In an interview Tuesday, Westerberg said Williams’ decision could have a chilling effect on legitimate court challenges over public records.

“One reason we submitted the brief is because if you start introducing these discretionary factors into whether someone is eligible for fees, that might reduce the likelihood that future courts would award fees, and that in turn would reduce the likelihood that people bring lawsuits in the first place,” she said. 

Meinecke, who accused officials of conspiring to scuttle her 2018 re-election bid, filed multiple requests for records, most of which were emails, from Dec. 1, 2017, to May 1, 2018. When several of those requests were denied, she sued the village, naming Village Administrator Jesse Thyes and Fire Chief William Rice as defendants.

During an Oct. 18, 2019, hearing, Williams ruled that several of the emails Thyes and Rice did not release were properly withheld under exceptions to the Open Records Law.         Among those emails were a to-do list Thyes created for himself and personal emails between Rice and his wife that have “no nexus to government business,” the judge said. Other records were properly withheld because they dealt with protected personnel matters, she said. 

Williams granted a motion for summary judgment filed by Thyes and Rice, effectively dismissing parts of Meinecke’s lawsuit that pertained to those records.

Noting that Thyes and Rice had released more than 1,000 records in response to requests from Meinecke, Williams said, “I think the respondents (Thyes and Rice) have engaged in an incredibly good-faith effort in complying with the open records law.”

Still at issue, however, were more than two dozen emails and attachments that were not released on the grounds they are protected by attorney-client privilege. Following an in-camera, or confidential, review of the emails, Williams determined about half were protected by privilege, while the rest of them were a mix of privileged and non-privileged material or did not contain privileged information. She then released the non-privileged records and granted summary judgment for both Meinecke and Thyes and Rice regarding that part of the lawsuit.

Williams, however, rejected Meinecke’s request that the village pay $15,789 for her legal fees and $534 for costs, ruling she did not prevail in whole or substantial part.

Kamenick said Meinecke’s appeal provides a valuable opportunity to establish case law on a critical issue.

“If the Legislature wanted to create a mathematical test, they certainly could have,” he said.

“They didn’t and just said substantial or prevailing victory. You prevail as long as you got at least something you were looking for from filing a lawsuit.”