In a recent open records case, The Capital Times v. Doyle, the appeals court held that a mandamus action is the only private remedy available to a requester when a record holder withholds a record. Basically, a mandamus action is brought to ask a court to issue a command ordering someone to take some action. In the case of an open records request, it would be a command from the court to a government official to release records which that official is withholding.
The Capital Times had requested letters regarding nine judicial candidates on June 4, 2009, and Governor Doyle’s office did not provide the letters until July 8, 34 days later. The open records law states that a government official should respond “as soon as practicable and without delay.” Thus on July 30,the newspaper filed a lawsuit seeking punitive damages. Governors Doyle filed a motion to dismiss, arguing that since the newspaper had not filed a timely mandamus action, they were now precluded from filing an ordinary civil action, since the public records law provides the exclusive remedy of the mandamus action. The district court agreed and dismissed the case, and the appeals court agreed.
Although this is not a municipal law case, municipalities are often tasked with responding to public records requests, and exactly what must be released, how long it takes, and how much it should cost are regular issues faced by municipalities. The upshot of this holding is that when a municipality withholds records and a requestor wants to force the municipality to release those records, a mandamus action pursuant to Wisconsin Statute § 19.37 is the only available private action. It may be that the district attorney or attorney general could bring an action for penalties, but a private party must utilize the mandamus procedure or their lawsuit will almost certainly be dismissed.