After initially denying requests, St. Croix County released records regarding a former deputy after The Badger Project sued. But the county has refused to pay the journalism nonprofit’s attorney fees.

By Annie Pulley, THE BADGER PROJECT

Despite releasing records after it was sued by The Badger Project, St. Croix County is refusing to pay nearly $1,400 in attorney fees and has moved to dismiss the lawsuit entirely.

“Custodians usually agree to settle cases like this by paying attorney fees to date,” said Tom Kamenick, founder and president of the Wisconsin Transparency Project law firm, which is representing The Badger Project. “Litigating whether their original denial was illegal will cost thousands or even tens of thousands of dollars more, and they’ll still have to pay our fees if we win.”

The Badger Project first requested records regarding a former sheriff’s deputy in May and then sued after the county denied the release of some documents. 

“Courts have held in case after case that blanket denials like this are unlawful,” Kamenick said. “The public has a very high interest in accessing investigatory and disciplinary records of law enforcement officers, even where the department clears them of any wrongdoing.”

St. Croix County administration did not respond to messages seeking comment.

In its first denial, the county said the records would be of little public interest yet would adversely affect ex-deputy Amanda Alberts’ reputation. She was not disciplined as a result of the investigation, and the county said releasing the records would create a chilling effect and lower morale in the sheriff’s office.

The next court date to discuss the county’s move to dismiss the lawsuit is set for mid-December.

“This is a very troubling case,” said Bill Lueders, the president of the Wisconsin Freedom of Information Council. “In this case, records were not provided until after a news outlet incurred the expense of bringing a lawsuit against St. Croix County. That expense should be on them.”

A case decided by the Wisconsin Supreme Court in 2022 may be at play here, Lueders said. 

If the record requester’s lawsuit “prevails in whole or in substantial part,” the government agency that produced the records is also responsible for footing the legal bill, according to the nonpartisan Wisconsin Legislative Reference Bureau, an agency that provides legal and research services to the state Legislature. In a 2022 decision, the Wisconsin Supreme Court said the government office is not necessarily responsible for paying the fees if it voluntarily produced the records without being ordered by a court, according to the bureau’s analysis.

A bipartisan group of state lawmakers is trying to close this loophole, however. 

A bill introduced in April would make state law again favor the group requesting the release of public records. The requester could still be entitled to attorney fees if the government agency voluntarily released the records.

“This inability to obtain attorney’s fees upon prevailing in an open records lawsuit can make it prohibitively expensive for Wisconsinites to challenge the denial of requests,” said Kyle Koenen, the policy director for the conservative Wisconsin Institute of Law and Liberty, in an April public hearing about the bill. “As a result, fewer attorneys will be willing to bring these open records lawsuits on a contingency basis, which leads to less transparency.” 

Eight groups are registered in support of the Assembly bill and no group is registered against it, according to the Wisconsin Ethics Commission website. Supporters include Wisconsin’s ACLU, Wisconsin Manufacturers & Commerce and the Wisconsin Professional Police Association.

The proposed legislation passed the state Senate in May but has since stalled in the Assembly. A similar bill died in the Assembly last year.

The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.