                                                                     2015 WI 56

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2013AP1715
COMPLETE TITLE:         The Journal Times and Steve Lovejoy,
                                   Plaintiffs-Appellants-Cross
                        Petitioners,
                             v.
                        City of Racine Board of Police and Fire
                        Commissioners,
                                   Defendant-Respondent-Petitioner.


                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 354 Wis. 2d 591, 849 N.W.2d 888)
                                    (Ct. App. 2014 – Published)
                                       PDC No: 2014 WI App 67

OPINION FILED:          June 18, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 4, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Racine
   JUDGE:               Gerald P. Ptacek

JUSTICES:
   CONCURRED:           ABRAHAMSON, BRADLEY, J.J., concur. (Opinion
                        Filed)
  DISSENTED:
  NOT PARTICIPATING:    PROSSER, J. did not participate.

ATTORNEYS:
       For        the   defendants-respondents-petitioners,         there   were
briefs       by    Rebecca   K.   Mason,   Racine,   and   Lauren   L.   Devine,
University of Wisconsin law student. Oral argument by Rebecca
Mason.




       For the plaintiffs-appellants-cross-petitioners, there were
briefs by Robert J. Dreps, Dustin B. Brown, and Godfrey & Kahn,
S.C., Madison. Oral argument by Dustin B. Brown.
     An amicus curiae brief was filed by Thomas C. Bellavia,
Assistant   Attorney   General   and   Clayton   P.   Kawski,   Assistant
Attorney General with whom on the brief was Brad D. Schimel,
Attorney General, for the Wisconsin Department of Justice.




                                   2
                                                                          2015 WI 56
                                                                  NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.   2013AP1715
(L.C. No.   2012CV758)

STATE OF WISCONSIN                            :             IN SUPREME COURT

The Journal Times and Steve Lovejoy,

             Plaintiffs-Appellants-Cross                               FILED
             Petitioners,

      v.                                                          JUN 18, 2015

City of Racine Board of Police and Fire                              Diane M. Fremgen
                                                                  Clerk of Supreme Court
Commissioners,

             Defendant-Respondent-Petitioner.




      REVIEW of a decision of the Court of Appeals.                  Reversed.


      ¶1     ANNETTE KINGSLAND ZIEGLER, J.             This is a review of a
published decision of the court of appeals,1 which reversed the
circuit     court's2     order   dismissing   the       mandamus        action      and
granting summary judgment to the City of Racine Board of Police
and Fire Commissioners ("the Commission").
      ¶2     The   Journal   Times   of   Racine     and    its     editor,      Steve
Lovejoy (collectively, "the Newspaper"), commenced this mandamus


      1
       Journal Times v. City of Racine Bd. of Police & Fire
Comm'rs, 2014 WI App 67, 354 Wis. 2d 591, 849 N.W.2d 888.
      2
          The Honorable Gerald P. Ptacek, Racine County, presided.
                                                                  No.   2013AP1715



action under Wis. Stat. § 19.37(1)(a) (2011-12)3 of Wisconsin's
public records law4 after the Commission denied the Newspaper's
request.     The request sought information pertaining to a special
meeting    that    the    Commission       held    in    closed      session   on
February 20,      2012.     The    Newspaper        is   no    longer     seeking
disclosure     because    the     Commission       provided    the      requested
information    and   is   in    compliance        with   the   request.        The
Newspaper, however, seeks to recover reasonable attorney fees,
damages, and other actual costs under § 19.37(2)(a) because, it
argues, it prevailed "in whole or in substantial part" in this
action.    Wis. Stat. § 19.37(2)(a).5

     3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Wisconsin Stat.
§ 19.37(1)(a) provides:

          (1) Mandamus. If    an   authority  withholds   a
     record or a part of a record or delays granting access
     to a record or part of a record after a written
     request for disclosure is made, the requester may
     pursue either, or both, of the alternatives under
     pars. (a) and (b).

          (a) The requester may bring an action for
     mandamus asking a court to order release of the
     record.   The court may permit the parties or their
     attorneys to have access to the requested record under
     restrictions or protective orders as the court deems
     appropriate.
     4
       See Wis. Stat. §§ 19.31 through 19.39. The public records
law is also known as the open records law. We will use the term
"public records law" in order to avoid confusion with the open
meetings law.
     5
         Wisconsin Stat. § 19.37(2)(a) provides, in pertinent part:

     [T]he court shall award reasonable attorney fees,
     damages of not less than $100, and other actual costs
                                       2
                                                                     No.     2013AP1715



        ¶3     The    court   of    appeals     reversed    the   circuit     court's
dismissal of the mandamus action.                The Newspaper claims that the
court of appeals erred, however, in remanding the matter to the
circuit court for a determination of whether reasonable attorney
fees, damages, and other actual costs should be awarded.                            The
Newspaper argues that the award should instead be made as a
matter of law.          Both parties petitioned this court for review.
Our analysis of the Newspaper's cross-petition is dispositive of
the issues presented by both parties.
        ¶4     The Newspaper cross-petitioned this court for review,
seeking to have this court hold that, as a matter of law, the
Newspaper       may   recover      reasonable    attorney    fees,   damages,       and

other       actual    costs   because   it    prevailed     in    this     action   "in
substantial part."            The Newspaper argues that the Commission's
denial and lack of timely record production equate to violations
of the public records law and open meetings law6 such that the
Newspaper has prevailed in substantial part as a matter of law.
        ¶5     Specifically, the Newspaper argues that an award under
Wis. Stat. § 19.37(2)(a) is due because the Commission twice
denied the request and misapplied the balancing test for denying
a public records request.7              The Newspaper argues that it filed


        to the requester if the requester prevails in whole or
        in substantial part in any action filed under sub. (1)
        relating to access to a record or part of a record
        under s. 19.35 (1)(a).
        6
            See Wis. Stat. §§ 19.81 through 19.98.
        7
      See Hathaway v. Joint Sch. Dist. No. 1, City of Green Bay,
116 Wis. 2d 388, 402-03, 342 N.W.2d 682 (1984) (discussing the
                                          3
                                                                          No.    2013AP1715



this lawsuit to obtain a record that it was led to believe
existed, but to which access was being denied.                            The Newspaper
also argues that the Commission did not timely respond to the
request     and   that,     when    the    Commission       ultimately          filed   its
answer to the summons and complaint, it revealed, for the first
time, that a record did not exist.8                    The Newspaper argues that,
under Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179
(1979), the Commission is barred from asserting that the record
did   not   exist.         The   Newspaper         argues   that    the    Commission's
defense in the mandamus action is limited to the written reasons
given in the denial.
      ¶6     On   the   other      hand,       the   Commission     argues       that   the

Newspaper     did    not    prevail       in       substantial     part    because      the
Newspaper, a sophisticated requester, requested information, not
a record.     The Commission states that it provided the requested
information even though it was not required to do so under the
public records law.              The Commission argues that it could not
have unlawfully denied the request because no record existed at
the time of the request.               In short, the Commission argues that
the   public        records      law      grants       access      to     records,      not


balancing test).
      8
       "'Record' means any material on which written, drawn,
printed, spoken, visual or electromagnetic information is
recorded   or   preserved,   regardless  of   physical  form   or
characteristics, which has been created or is being kept by an
authority." Wis. Stat. § 19.32(2). "'Record' includes, but is
not limited to, handwritten, typed or printed pages, maps,
charts,   photographs,   films,   recordings,   tapes  (including
computer tapes), computer printouts and optical disks." Id.

                                               4
                                                                                   No.    2013AP1715



information,            and   that    the     Newspaper          did      not   prevail     in     its
lawsuit because a court cannot require release of a record that
does not exist.
        ¶7         We conclude that under the facts of this case, the
Newspaper did not prevail in substantial part in this action and
is therefore not entitled to reasonable attorney fees, damages,
and other actual costs under Wis. Stat. § 19.37(2), because the
Commission          did     not    unlawfully           deny   or    delay      release     of     the
subject           record.         Whether     the       Commission         violated      the      open
meetings          law   is    not    properly           before      the    court      because      the
Newspaper did not request a district attorney to commence an
action under Wis. Stat. § 19.97.                           Under State ex rel. Blum v.
Board        of     Education,       School       District          of    Johnson     Creek,       209
Wis. 2d 377, 565 N.W.2d 140 (Ct. App. 1997), we may consider the
Commission's defense that a responsive record did not exist at
the time of the request even though the Commission first raised
this defense in the mandamus action.
        ¶8         In other words, the Newspaper is not entitled to its
requested relief because its request is not supported by the
facts of this case or the law.                          Both parties contributed to any
misunderstanding, if there was one, of what was being requested
and     the        sufficiency       of     the     responses.             In   any      event,     no
responsive record existed at the time of the request and no
record was produced because of the lawsuit.                                     While a records
request need not be made with exacting precision to be deemed a




                                                    5
                                                                     No.    2013AP1715



valid public records request,9 the Newspaper is a requester and
wordsmith    with    experience      and      sophistication.              Here,   the
requests could reasonably be perceived as seeking information,
rather than a record.         Although under no obligation to provide
information in response to a records request, the Commission
provided    the   Newspaper   with    the      answers    to   its   questions      by
providing information.        Moreover, the subject request cites the
open meetings law.        The Commission initially denied the records
requests    but   later   agreed     to    provide,      and   did   provide,      the
requested information.        At the time of the request and at the
time that the information was provided, no record existed that
could have been responsive to the request.                     The Newspaper no

longer seeks production of a record; it seeks only reasonable
attorney fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2)(a).      Whether a record should have been in existence
at the time of the request is a matter of the open meetings law,
not public records law.        Certainly the Commission cannot avoid a
public records request by failing to timely create a record.                       In
this case, however, the Commission responded to the Newspaper
with reasonable diligence and released the requested information
while maintaining that it was not legally required to do so and
at a time when no record existed.              Neither the facts nor the law
support     the   conclusion       that       the   Newspaper        prevailed      in
"substantial part."


     9
       See ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶¶23,
26, 259 Wis. 2d 276, 655 N.W.2d 510.

                                          6
                                                                       No.       2013AP1715



                      I. FACTUAL AND PROCEDURAL BACKGROUND
      ¶9      The Commission is charged with the responsibility of
hiring police officers and firefighters, including the chiefs of
the   City       of    Racine's     police       and    fire     departments.          The
Commission consists of five members who are appointed by the
mayor.      Its entire budget in 2012 was $23,650.
      ¶10     The Commission regularly holds only one meeting every
two months.         The Commission rarely calls a special meeting.
      ¶11     The        Commission's            secretary,          Keith         Rogers
("Commissioner Rogers"), is primarily responsible for drafting
the Commission meeting minutes.                   He is a private citizen who
volunteers his time to serve on the Commission.                              He is not

employed by the City of Racine or its police department.                           He has
employment in addition to his part-time volunteer position as a
commissioner.
      ¶12     The Commission has a standard procedure for drafting
and approving meeting minutes.                    Typically, during a meeting,
Commissioner Rogers takes notes on a template that outlines the
meeting     agenda.       He    typically        drafts    minutes    for    a    meeting
within     one    week   after      that    meeting.       However,    sometimes        he
requires     more      time   to    draft    meeting      minutes    because      of   his
regular employment commitments.                   After he drafts minutes, he
usually     sends      them    to   the     police     chief's    secretary,       Dianne
Flannery ("Flannery"), for review.                     Flannery later distributes

the draft minutes to all five commissioners.                          The Commission
typically reviews the draft minutes for approval at its next


                                             7
                                                                                 No.    2013AP1715



regular meeting, which is held once every other month.                                          The
Commission never approves minutes at a special meeting.
     ¶13     In May 2011 the City of Racine's police chief, Kurt
Wahlen,     retired.         Twenty-three             people     applied        for     the    open
police     chief     position.              The    Commission           determined      that     11
applicants met minimum requirements for the position, and it
selected seven applicants for interviews.                               Two of those seven
withdrew     their      names        from     consideration,             so    the     Commission
interviewed the five finalists.
     ¶14     By mid-February 2012 the Commission reduced the field
of candidates to three finalists and publicly disclosed their
identities.        Two of the three finalists, Lieutenant Carlos Lopez

("Lopez") and Deputy Chief Arthel Howell ("Howell"), were racial
or ethnic minorities and were already employed by the Racine
Police    Department.           On    Friday,         February      17,       2012,    the    third
finalist, Ronald Teachman ("Teachman"), withdrew his name from
consideration. Teachman was not already employed by the Racine
Police Department.            The Commission called a special meeting to
be   held    on     the      next      business         day    to       address        Teachman's
withdrawal.
     ¶15     On Monday, February 20, 2012, the Commission held that
special     meeting     in    closed        session.          The   Commission          voted    to
reopen    the   selection        process          for   hiring      a    new    police       chief.
Specifically, it voted to determine which of the original 11

applicants        who     met    the         minimum      requirements               were     still




                                                  8
                                                                               No.    2013AP1715



interested in the position.               The Commission would consider these
interested candidates again.10
     ¶16     On   February       20,     2012,   the       same    day    as    the    special
meeting,    the     Commission         issued    a    press       release.           The    press
release stated that Teachman withdrew his application for the
police chief position.                It further stated that the Commission
"determined       that     it    preferred       to    have        a   broader        pool     of
candidates    moving       forward.         Therefore,           the     [Commission]         has
directed    Springsted11         to    reengage       with       other    candidates          who
applied for the Racine Chief of Police position.                           City of Racine
Deputy Chief Arthel Howell and Lieutenant Carlos Lopez remain
finalists for the position."               The press release did not identify

which commissioners made and seconded the motion to reopen the
selection process for hiring a new police chief.                                     The press
release    also     did    not   state     how   many       commissioners,            or    which
commissioners, voted for or against the motion.
     ¶17     Also    on     February       20,       the    Newspaper          published       an
article about the Commission's decision to reopen the selection
process for hiring a new police chief.                      Christine Won ("Won"), a
reporter for the Newspaper, authored the article.
     ¶18     On Wednesday, February 22, 2012, two days after the
special    meeting        and    press     release,        Won     sent    an        e-mail    to

     10
       Two days later, on February 22, the Commission held a
special meeting and voted to reverse its decision from the
February 20 special meeting——that is, on February 22 it decided
to pursue only Lopez and Howell for the police chief position.
     11
       Springsted, Incorporated was the firm hired                                     by     the
Commission to assist with finding a new police chief.

                                             9
                                                                          No.     2013AP1715



Commission President Charles Johnson, Commissioner Rogers, and
Racine      Deputy      City      Attorney         Scott        Letteney        ("Attorney
Letteney"), which stated, in relevant part:

     Good morning Chuck, Keith,

          I was told to make my open records request
     directly to the custodians so am asking you as the
     president    and  secretary   of   the   commission
     respectively.

          I am officially asking on the record to know the
     vote of each commissioner from the closed [Commission]
     meeting Monday[, February 20, 2012,] in which they
     decided to reopen the police chief search.

          If you choose to deny, please provide a written
     explanation.
     ¶19     A    few   hours    after   sending         that    e-mail,    Won    sent   a
clarification e-mail to the same three recipients, which stated:

     Chuck, Keith,

          Under statute 19.88(3) —— I am asking for the
     recorded motions and votes of each PFC Commissioner at
     the closed meeting on Monday[, February 20], including
     who made the motion and who seconded it.

             . . .

          I would appreciate this information as soon as
     practicable and without delay. If you choose to deny
     this request, please provide a written explanation.
     ¶20     It    is    undisputed        that     no     record       containing      the
requested    information         existed      at   the     time    of    the    requests.
Commissioner       Rogers,      who   would     ordinarily        be    responsible     for
taking notes of the meeting on a template, did not attend the
February 20 special meeting but instead appeared remotely via
telephone.        He did not have his note-taking template with him


                                           10
                                                               No.   2013AP1715



and did not take notes of the meeting as he normally would.12
Accordingly, he did not draft minutes of the meeting.                  Had he
taken notes and drafted minutes, the Commission in its normal
course of business would have circulated the draft minutes for
approval at its next bi-monthly meeting.13
     ¶21   On   Wednesday,   March        7,     2012,   Attorney    Letteney
responded and denied Won's requests:

          On behalf    of,   and     at    the     direction   of,   the
     [Commission]:

          1. Your request for the specific vote of the
     [Commission], by member, taken in closed session on
     February 20, 2012 is denied.     The basis for this
     denial is State ex rel. Cities Service Oil Co. v.
     Board of Appeals, 21 Wis. 2d 516[,] 124 N.W.2d 809
     (1963).    In that case, regarding voting in closed
     sessions, the Wisconsin Supreme Court held, at page

     12
       The   circuit  court   record does   not   explain  where
Commissioner Rogers was during the meeting.     An interrogatory
question asked the Commission why he did not take notes on this
meeting.   The answer stated that "Commissioner Rogers appeared
at the subject February 20 meeting via telephone.     He did not
have a copy of his 'minute-taking template' with him at his
remote location."      We note that Commissioner Rogers has
employment in addition to his part-time volunteer position on
the Commission.    We also note that this February 20 special
meeting was called on short notice.
     13
       Under the Commission's ordinary course of business, it
would not have reviewed minutes for the February 20 special
meeting until its next regular meeting, which was held on
Monday, March 19, 2012.   In fact, the agenda for the March 19
meeting, which was apparently released to the public on
March 12, stated that the Commission planned to approve the
draft minutes for the February 20 special meeting. However, no
draft minutes for the February 20 meeting were created prior to
the March 19 meeting.     Thus, the February 20 minutes were
approved at the Commission's next regular meeting, on May 22,
2012.

                                   11
                                                                              No.   2013AP1715


      539, that "voting is an integral part of deliberating
      and merely formalizes the result reached in the
      deliberating process."
The   Newspaper        then        asked     the    Commission      to      reconsider     its
decision denying the request.14
      ¶22   On    Friday,          March     9,     2012,   in    another      e-mail     from
Attorney    Letteney          to     Won,     the    Commission      again      denied     the
Newspaper's       request.            This     time,    the      Commission's       response
stated that its denial was based on concerns for the safety of
at least one commissioner due to the controversy surrounding the

Commission's decision to reopen the selection process for hiring
a new police chief.            This e-mail stated:

           The City/[Commission] has a strong, good faith
      basis, founded in the law for denying the release of
      the vote of the [Commission] from its February 20,
      2012 meeting.     In addition, upon performing the
      required balancing test for the release of records,
      there is are [sic] significant public policy bases for
      denial of the records.

           (A) (Some)     commissioner(s)   have    expressed
      reasonable concerns for (his)(her)(their) personal
      wellbeing if the specifics of the vote are released.
      ¶23   The       Commission,          however,    indicated        a    willingness    to
release the "specifics of the vote" within five business days of
hiring a new police chief because the Newspaper had made clear
its   desire     to    have        "this    information."          In       particular,    the
March 9 e-mail continued:



      14
       The circuit court record contains an affidavit by Steve
Lovejoy, which states that he directed Won to request that the
Commission reconsider its March 7 response.         However, the
contents of this request are not in the circuit court record.

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                                                                      No.   2013AP1715


       Additionally, as you are aware, there has been a
       disproportionate focus on race and an inaccurate
       perception that discrimination has played some role in
       the decision-making in the police chief selection
       process. This has been an unfortunate cloud over the
       selection process and has perceptibly affected such
       process.

             The release of the specifics of the vote at this
       time will certainly exacerbate these issues. Despite
       this,    you  have  made  clear   the  import  to  the
       [Newspaper] of having this information. Therefore, we
       will offer a compromise. The specifics of the February
       20 vote will be released to you within five business
       days after a new police chief has been hired by the
       [Commission].
       ¶24   On   Monday,    March   12,    2012,      the    Newspaper     requested

that   the   "information"     be    released     "immediately"         because   the
public should "know how the decision" was made.                        Won wrote to
Attorney     Letteney   via    e-mail:      "We   are    not       interested   in    a
compromise and would like the information immediately.                          I can
understand [the Commission's] concerns about public perception
but we believe it is in the public's interest to know how the
decision to reopen the search was made."                     The e-mail concluded:
"We ask you to reconsider our request and let us know [the
Commission's] final response."
       ¶25   Three days later, on Thursday, March 15, the Newspaper
e-mailed     to   Attorney    Letteney      a   copy    of     a   draft,   unfiled,
summons and complaint alleging that the Commission violated the

public   records    law.      The    Newspaper      asked      the   Commission      to
stipulate to accept service.               Attorney Letteney informed the
Newspaper that the Commission could not accept service and that
service should be made on the city clerk.


                                       13
                                                               No.   2013AP1715



     ¶26   The next day, Friday, March 16, the Newspaper filed
this action in court against the Commission under Wis. Stat.
§ 19.37(1) of the public records law.            The Attorney General or a
district attorney did not file an action under the open meetings
law.15
     ¶27   On Tuesday, March 20, 2012, the Commission unanimously
voted to hire Deputy Chief Howell as Racine's new police chief.
     ¶28   Two   days   later,   on        Thursday,   March   22,   Attorney
Letteney sent an e-mail to the Newspaper that provided, not a
record, but the information it had requested. The e-mail stated:

          At   the  February   20,   2012   meeting  of   the
     [Commission], the motion was to reopen the search for
     a police chief only to the extent to determine whether
     the other candidates who applied for the Racine Chief
     of   Police   position   and   who   met   the   minimum
     qualifications, but were not initially asked to
     interview, were still interested in the position. The
     import of the discussion leading to the motion was a
     desire on the part of the Commissioners to compare
     external candidates to internal candidates, inasmuch
     as the first interview did not include all members of
     the [Commission]. Commissioner Van Wanggaard made the
     motion.   It was seconded by Commissioner Marie Black.
     Commissioners Charles Johnson, Black, and Wanggaard
     voted in the affirmative.    Commissioners Keith Rogers
     and Melvin Hargrove voted in the negative.
Minutes of the February 20 motion and vote, however, were still
not drafted or approved.16

     15
       Before filing an action under the open meetings law, a
private citizen must first request a district attorney to file
an action on behalf of the State.    See Wis. Stat. § 19.97(1),
(4). The Newspaper did not follow this procedure.
     16
       Because the minutes were not drafted before the March 19,
2012 regular meeting, they were drafted shortly before and
approved at the May 22, 2012 regular meeting.     See supra note
                                      14
                                                               No.   2013AP1715



      ¶29     The Newspaper did not serve the Commission with this
lawsuit     until    April   11,   2012,   which   was   20   days   after    it
received the requested information.           The complaint alleged that
the Commission "violated the [Public] Records Law and Wis. Stat.
§ 19.88(2) by denying the Newspaper's request."                Specifically,
the complaint alleged that the Commission's stated reasons for
denying the Newspaper's request were legally insufficient.                   The
complaint

      demand[ed] judgment against the defendant under Wis.
      Stat. § 19.37(1):

           A. Compelling the defendant to provide                    the
      Newspaper a copy of the requested record;

           B. Awarding    the plaintiffs their  reasonable
      attorneys' fees, actual costs and damages under Wis.
      Stat. § 19.37(2)[;] and

              C.    Awarding such other relief as the Court deems
      just.
      ¶30     On May 7, 2012, the Commission filed an answer to the
Newspaper's complaint.        In its answer the Commission argued that
the mandamus action was "moot" because the Commission "provided
the information requested to [the Newspaper] within a reasonable
time after the request."           One of the Commission's affirmative
defenses was that the mandamus action was "not properly brought
under the Wisconsin Public Records Law, because a 'record,' as
defined by § 19.32(2), Wis. Stats., containing the information
sought has never existed."



13.

                                      15
                                                                          No.    2013AP1715



           ¶31    At the time that the Commission filed its answer to
the Newspaper's complaint, no record was yet in existence.                              The
Commission had not drafted minutes for the February 20 special
meeting prior to its regular meeting on March 19 but it had
drafted          minutes   before     its     next   regular    meeting     on    May   22.
Specifically, on or about May 21, 2012, Attorney Letteney sent
proposed language for February 20 meeting minutes to the police
chief's secretary, Dianne Flannery.                     However, Attorney Letteney
did not draft any minutes.                  Instead, on May 21 Flannery drafted
minutes for the February 20 meeting.                     After Commissioner Rogers
approved          Flannery's    draft       minutes,    Flannery    sent        the   draft
minutes to the five commissioners via e-mail.                       She did not send

the draft minutes to Attorney Letteney.                        The next day, May 22,
the Commission approved the minutes at its regular, bi-monthly
meeting.
           ¶32    On September 13, 2012, the Newspaper filed a motion
for summary judgment in the lawsuit.                    In a brief supporting the
motion, the Newspaper clarified that it was seeking disclosure
of     a     record——specifically,            meeting   minutes.         The     Newspaper
argued that, "[a]lthough the Newspaper does not question the
accuracy of the information provided by Mr. Letteney, his e-mail
does        not     satisfy    its      public       records     request. . . .         The
[Commission] has never provided to the Newspaper the minutes of
its February 20 meeting."                   On October 3, 2012, the Commission

filed        a    brief    opposing     the     Newspaper's     motion     for    summary
judgment.


                                               16
                                                            No.    2013AP1715



     ¶33    On October 25, 2012, the circuit court held a hearing
on the Newspaper's motion for summary judgment.           At the hearing,
Attorney Letteney, unaware that draft minutes were circulated to
the Commission on May 21, stated that he has "never seen minutes
for [the February 20, 2012] meeting."           He further stated, "I
don't think it's reasonable to anticipate that two days after a
meeting a newspaper reporter that understands the process of
minutes    being   taken,   minutes    being   posted,     minutes     being
approved should actually believe that a record actually exists
two days after a meeting . . . ."         He concluded that "if the
[Newspaper] wins this motion, there is still no record to give
them."     The circuit court denied the motion.          The court stated

that it was "not satisfied on this record the Court can find
that there has been a prima facie case made out that there are
documents that exist here."       "There's no fact asserting that
minutes——draft minutes were created or that minutes themselves
were created, and thus, to grant the motion for summary judgment
would yield potentially an order of the Court that would produce
nothing and have no meaningful effect."         The court allowed the
case to proceed for more discovery.17
     ¶34    On December 3, 2012, Attorney Letteney sent a letter
to the circuit court and to the Newspaper's counsel.              The letter
reiterated that Attorney Letteney was previously "unaware of the
existence of any minutes for [the February 20, 2012] meeting."

     17
       On   January   9,  2013, Commissioner  Rogers  answered
interrogatories submitted by the Newspaper.  He was previously
deposed on June 18, 2012.

                                  17
                                                                          No.     2013AP1715



However, he explained that sometime after the October 25 hearing
he   learned    that     the    police       chief's        secretary,     on     May     21,
circulated     draft    minutes       for    the    February      20    meeting     to    the
commissioners.          The    letter       further        explained     that     Attorney
Letteney     "provided    [a]     copy       of    such     draft      minutes    to     [the
Newspaper's counsel]."            The February 20 meeting minutes that
were sent to the Newspaper's counsel were almost verbatim with
the information that the Commission e-mailed to the Newspaper on
March 22.18      The letter emphasized that "the draft minutes did
not exist on February 22, 2012, the date the public records
request at issue was made."                 The letter further emphasized that
the approved minutes for the February 20 special meeting had not

yet been published on the City of Racine's Web site.19
      ¶35    On March 22, 2013, the Commission filed a motion for
summary     judgment.         Three    days       later,    the     Newspaper     filed     a
renewed motion for summary judgment.
      ¶36    On April 22, 2013, the circuit court held a hearing on
those two motions.            The circuit court found that no responsive


      18
           The minutes read:

           Reopening the Police Chief recruitment to the
      extent of those applicants who were qualified, but not
      previously granted interviews, approved on a motion by
      Commissioner Wanggaard and seconded by Commissioner
      Black.      Motion   carried   three   to  two,   with
      Commissioners Johnson, Wanggaard, and Black voting in
      the affirmative, and Commissioners Hargrove and Rogers
      voting in the negative.
      19
       The circuit court record does not indicate when                                   the
February 20 minutes were published on the city's Web site.

                                             18
                                                                              No.    2013AP1715



record      existed      at    the       time    of    the   Newspaper's      request.       In
particular, it found that "it's not disputed I guess that at the
time the demand was made there wasn't any written recording to
be    supplied     to     the      City     [sic]       pursuant    to      their    request."
Further, "the minutes of February 20th . . . were never approved
until the Commission's May 22nd meeting . . . ."
       ¶37    The circuit court also found that "it's clear the City
hadn't       or   didn't        know       exactly       what   had      happened     at    the
[February 20,         2012]        meeting       with    respect    to      minutes . . . ."
The court found that:

       [I]n this case I think the issue on the part of the
       [Newspaper] is created by the lack of knowledge on the
       part of the governmental entity to know exactly what
       was happening in a committee that was meeting to
       discuss the hiring of a chief of police and the way it
       did or did not keep its records, and that's why this
       case in its instance had to lead to a process to
       discover whether there was a record that existed or
       not. It wasn't known . . . .
       ¶38    At the end of the hearing, the circuit court denied
the    Newspaper's            motion       for    summary       judgment,      granted      the

Commission's       motion          for    summary       judgment,     and     dismissed     the
action.20         After       an     in-depth          discussion     of     State   ex    rel.
Zinngrabe v. School District of Sevastopol, 146 Wis. 2d 629, 431
N.W.2d 734        (Ct.    App.       1988),       the     circuit     court     stated     that
Zinngrabe "is controlling and on point here."                              The circuit court
concluded, based on Zinngrabe, that it was "not satisfied that
the pleadings which were couched in terms of [public] records

       20
       On May 2, 2013, the circuit court entered a written order
to that effect.

                                                  19
                                                                     No.    2013AP1715



law allow us to reach the issue about . . . the open meetings
law."
        ¶39   On May 28, 2014, the court of appeals reversed the
circuit court's order and "remand[ed] solely for a determination
of   whether     the   Newspaper   is    entitled       to    attorney      fees   and
costs."       Journal Times v. City of Racine Bd. of Police & Fire
Comm'rs, 2014 WI App 67, ¶2, 354 Wis. 2d 591, 849 N.W.2d 888.
The court of appeals held that, although "the Newspaper's record
request       became    moot   when      the     Commission         provided       the
information," the action should not be dismissed because "[t]he
Newspaper still has a viable claim for attorney fees and costs
if   the      litigation   'was    a    cause,    not        the   cause'    of    the
Commission's March 22 release."                Id., ¶11 (citation omitted).
The court of appeals held "that the Commission is estopped from
arguing that a record of the vote did not exist."21                  Id., ¶12.
        ¶40   On June 17, 2014, the Newspaper filed a motion for
reconsideration, asserting that it was entitled to reasonable
attorney fees, damages, and other actual costs as a matter of
law because it "prevailed" "in substantial part" in the mandamus
action.       On June 20, 2014, the court of appeals denied the
motion for reconsideration.


        21
       In its response brief, the Newspaper states that it
"agrees with the [Commission] that the court of appeals should
not have applied equitable estoppel here." The Newspaper argues
that we should rely on Newspapers, Inc. v. Breier, 89
Wis. 2d 417,   279  N.W.2d 179  (1979),  instead   of  equitable
estoppel, to bar the Commission from raising its defense that no
record existed. Thus, we do not address equitable estoppel.

                                        20
                                                                               No.    2013AP1715



      ¶41    On July 21, 2014, the Commission filed a petition for
review.      On    August    20,       2014,       the    Newspaper       filed       a   cross-
petition    for    review.       On     November          14,    2014,    we    granted       the
petition and cross-petition for review.
                             II. STANDARD OF REVIEW
      ¶42    "Interpretation           of    our         own     case    law     presents      a
question of law that we review de novo."                          State v. Walker, 2008
WI 34, ¶13, 308 Wis. 2d 666, 747 N.W.2d 673 (citation omitted).
"We   independently      review        whether       the       circuit    court       correctly
granted     summary     judgment"           to     the     Commission.               Stoker    v.
Milwaukee     Cnty.,     2014      WI       130,     ¶16,        359     Wis. 2d 347,         857
N.W.2d 102    (citation       omitted).             "Summary        judgment         'shall    be

rendered      if       the      pleadings,               depositions,          answers        to
interrogatories,       and      admissions          on     file,       together       with    the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment     as    a   matter     of     law.'"            Id.     (quoting       Wis.    Stat.
§ 802.08(2)).           "'Statutory              interpretation          and      application
present questions of law that we review de novo while benefiting
from the analyses of the court of appeals and circuit court.'"
118th St. Kenosha, LLC v. DOT, 2014 WI 125, ¶19, 359 Wis. 2d 30,
856 N.W.2d 486 (quoting 260 N. 12th St., LLC v. DOT, 2011 WI
103, ¶39, 338 Wis. 2d 34, 808 N.W.2d 372).
      ¶43    "[S]tatutory interpretation 'begins with the language
of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.'"                    State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
                                             21
                                                                             No.     2013AP1715



N.W.2d 110 (quoted source and citations omitted).                                  "Statutory
language is given its common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases are
given their technical or special definitional meaning."                                    Id.
(citations omitted).
                                     III. ANALYSIS
        ¶44   At    the    outset,    we        recognize      that    the     Newspaper's
action was brought under the public records law rather than the
open    meetings     law.       Thus,      we    do   not     determine       whether      the
Commission's practices comport with the open meetings law.                                  In
our analysis we focus on whether the Newspaper prevailed in this
action in substantial part, entitling it to reasonable attorney

fees,     damages,        and   other      actual          costs     under     Wis.     Stat.
§ 19.37(2)(a) of the public records law.                       In doing so, we first
discuss       general       principles          concerning         public      access       to
governmental        records.          Second,         we     outline         the     parties'
arguments.         Third, we analyze whether the Commission is barred
from raising its affirmative defense that no responsive record
existed at the time of the Newspaper's requests.                                   Fourth, we
review the Newspaper's requests and the Commission's responses.
Finally,      we     evaluate     precedent           to     determine        whether      the
Commission exercised reasonable diligence in responding to the
requests.           Ultimately,       we    conclude          that     the     Newspaper's
requested relief is supported neither by the facts of this case

nor by legal precedent.
                                 A. Public Access


                                            22
                                                                          No.    2013AP1715



      ¶45    The     public    records      law     and   open     meetings       law    are
fundamental        concepts    in     our    state's      history     of    transparent
government.         See State ex rel. Auchinleck v. Town of LaGrange,
200 Wis. 2d 585, 597, 547 N.W.2d 587 (1996); Schill v. Wisconsin
Rapids   Sch.       Dist.,    2010    WI    86,    ¶¶1-3,   327     Wis. 2d 572,         786
N.W.2d 177.        These laws were enacted to promote public access to
actions of governmental bodies.                   See Watton v. Hegerty, 2008 WI
74, ¶¶9-10, 311 Wis. 2d 52, 751 N.W.2d 369.                        Wisconsin's public
records law states that "it is declared to be the public policy
of this state that all persons are entitled to the greatest
possible information regarding the affairs of government and the
official     acts    of    those     officers      and    employees    who      represent

them."       Wis.    Stat.    § 19.31.        "[T]he      clearly    stated,       general
presumption of our law is that all public records shall be open
to the public."            Linzmeyer v. Forcey, 2002 WI 84, ¶15, 254
Wis. 2d 306,         646     N.W.2d 811       (citation       omitted).               "This
presumption reflects the basic principle that the people must be
informed     about     the     workings      of     their    government         and     that
openness in government is essential to maintain the strength of
our democratic society."               Id. (citation omitted).                  Similarly,
Wisconsin's open meetings law states that "it is declared to be
the policy of this state that the public is entitled to the
fullest and most complete information regarding the affairs of
government as is compatible with the conduct of governmental
business."      Wis. Stat. § 19.81(1).
      ¶46    Despite their similar purposes, the public records law
and   open    meetings       law    have    differences      and    are    not     without
                                            23
                                                                              No.     2013AP1715



limits.            The      legislature          enacted        different       avenues        of
enforcement for these two laws.                        The public records law's plain
language allows an individual to initiate a lawsuit to enforce a
records request but the statute does not similarly authorize an
individual to initiate a lawsuit to enforce the open meetings
law.     Specifically, the public records law provides that, "[i]f
an authority withholds a record or a part of a record or delays
granting access to a record or part of a record after a written
request for disclosure is made," "[t]he requester may bring an
action      for    mandamus       asking     a    court    to     order     release    of     the
record."       Wis. Stat. § 19.37(1)(a).
        ¶47    By contrast, the open meetings law "shall be enforced

in the name and on behalf of the state by the attorney general
or, upon the verified complaint of any person, by the district
attorney of any county wherein a violation may occur."                                       Wis.
Stat.       § 19.97(1).           "If    the       district       attorney      refuses        or
otherwise fails to commence an action to enforce this subchapter
within 20 days after receiving a verified complaint, the person
making such complaint may bring an action under subs. (1) to (3)
on    his     or   her    relation      in   the       name,    and    on   behalf,     of    the
state."       Wis. Stat. § 19.97(4).
        ¶48    The       open    meetings        and    public     records     laws     become
somewhat intertwined in this case because the Newspaper argues,
in part, that the public records law was violated because the

Commission violated the open meetings law.                            The Newspaper argues
that "Wis. Stat. § 19.88(3) [of the open meetings law] required
the    [Commission]         to    record     and       disclose       the   information       the
                                                 24
                                                                       No.     2013AP1715



Newspaper     requested."           Section       19.88(3)    states      that    "[t]he
motions and roll call votes of each meeting of a governmental
body shall be recorded, preserved and open to public inspection
to the extent prescribed in subch. II of ch. 19."                            Wis. Stat.
§ 19.88(3).        Subchapter II includes the public records law.                      The
Newspaper     urges       this    court     to     "hold    that    the   legislature
intended the duties imposed by § 19.88(3) to be enforced under
the [Public] Records Law."
      ¶49    The Commission, relying on Zinngrabe, 146 Wis. 2d 629,
argues that we cannot consider whether it complied with the open
meetings law, because this lawsuit was filed under the public
records law.         Further, the Commission argues that it did not

violate     the    open    meetings    law.         It   argues    that   it     was    not
required under Wis. Stat. § 19.88(3) of the open meetings law to
create a record of the commissioners' individual votes at the
February 20, 2012 special meeting.                  The Commission reasons that
§ 19.88(3) requires "roll call votes" to be recorded, but the
Commission        used    voice    votes,     not    roll    call    votes,      at     the
February 20 special meeting.              The Commission also argues that it
was not required under § 19.88(3) to record the motion at that
meeting.     Even if § 19.88(3) required the Commission to record
the   motion        and     individual       commissioners'         votes        at     the
February 20        special       meeting,     the    Commission      argues,          "this
[statute] does not obligate a public body to 'immediately' make
a record of any such motions or votes."
      ¶50    We turn to Zinngrabe.               Donald Zinngrabe filed a public
records request with the Sevastopol School District seeking to
                                            25
                                                                No.   2013AP1715



inspect    minutes     from    several    school    board    closed   meetings.
Zinngrabe, 146 Wis. 2d at 630-31.               After being told that the
requested records did not exist, he filed a mandamus action,
seeking "a writ of mandamus, punitive damages, and other costs
under the [public] records law . . . ."              Id. at 630.      He argued
that he could seek relief under the public records law for the
school     board's    failure     to   maintain    records    of   its   closed
meetings as allegedly required by Wis. Stat. §§ 120.11(1) and
120.17(3) (1985-86).          Id. at 634.     The court of appeals rejected
that argument, explaining that:

     Zinngrabe   essentially  argues  that  the   board  is
     attempting to defeat the provisions of the [public]
     records law by not keeping records that it is directed
     by statute to maintain. Zinngrabe's claim for relief,
     however, assumes that the board's alleged failure to
     keep minutes can be attacked under the [public]
     records law.     We disagree with this premise and,
     accordingly, need not address the issue of whether and
     to what extent minutes must be maintained by the
     school board clerk.
Id. at 634-35.
     ¶51    Consistent with Zinngrabe, the Newspaper cannot seek
relief under the public records law for the Commission's alleged
violation of the open meetings law.               It is undisputed that the
Newspaper filed this action under the public records law and did
not follow the procedures to pursue an action under the open
meetings law.        Thus, we do not address whether an open meetings
law violation occurred.           In this public records law mandamus
action, the Newspaper cannot recover reasonable attorney fees,
damages, and other actual costs under Wis. Stat. § 19.37(2) for


                                         26
                                                                           No.     2013AP1715



an alleged violation of the open meetings law.                         See id. at 634-
35;     118th       St.   Kenosha,        LLC,    359   Wis. 2d 30,        ¶33    (Even     if
"damages . . . are compensable under a particular statute, those
damages cannot be recovered in a claim brought under the wrong
statute.").
        ¶52     The Newspaper's contrary arguments do not persuade us
to     hold     otherwise.          The     Newspaper     contends        that    the     open
meetings law's "enforcement provisions are ill-suited to serve
the     legislature's          declared      purpose     to   ensure       timely       public
access        to    government      affairs."           However,     the     legislature
mandated           significant      differences         between      the         two    laws'
enforcement provisions.              See Auchinleck, 200 Wis. 2d at 592-93.
If the Newspaper seeks change in the statutory provisions, it
must direct those concerns to the legislature.                              "[A]ddressing
those     concerns        is    a   legislative         function,    not     a     function
properly undertaken by the courts."                     Milwaukee Journal Sentinel
v. City of Milwaukee, 2012 WI 65, ¶83, 341 Wis. 2d 607, 815
N.W.2d 367 (Roggensack, J., concurring for a majority of the
court).         We also disagree with the Newspaper's argument that
"Wis. Stat. § 19.88(3) . . . implicitly incorporates [the public
records        law's]     enforcement            measures."        Were     we     to    hold
otherwise,          we    would      effectively         nullify     the         enforcement
provisions that the legislature included in the open meetings
law.     See Wis. Stat. § 19.97; Auchinleck, 200 Wis. 2d at 592-93.
              B. Did the Newspaper Prevail in Substantial Part?
        ¶53     The crux of the issue before the court is whether the
Newspaper prevailed in substantial part in this action so to
                                                 27
                                                                        No.     2013AP1715



entitle       it    to    reasonable     attorney       fees,    damages,     and     other
actual costs under Wis. Stat. § 19.37(2)(a).
        ¶54    We conclude that under the facts of this case, the
Newspaper did not prevail in substantial part in this action and
is therefore not entitled to reasonable attorney fees, damages,
and other actual costs under Wis. Stat. § 19.37(2), because the
Commission         did    not   unlawfully       deny    or   delay   release       of   the
subject record.             In other words, the Newspaper is not entitled
to its requested relief because its request is not supported by
the facts of this case or the law.                      Both parties contributed to
the   misunderstanding,           if    there     was    any,    of   what    was     being
requested and the sufficiency of the responses.                         In any event,

no responsive record existed at the time of the request and no
record was produced because of the lawsuit.                           While a records
request need not be made with exacting precision to be deemed a
valid public records request,22 the Newspaper is a requester and
wordsmith          with    experience      and     sophistication.            Here,      the
requests could reasonably be perceived as seeking information,
rather than a record.                  Moreover, the request cites the open
meetings law.             The Commission initially denied the requests but
later        agreed        to   provide,     and        did     provide,      responsive
information.          At the time of the request and at the time that
the information was provided, no record existed that could have
been responsive to the request.                   The Commission was not required
to provide information in response to a records request.                                 The

        22
             See ECO, Inc., 259 Wis. 2d 276, ¶¶23, 26.

                                             28
                                                              No.   2013AP1715



Newspaper no longer seeks production of a record; it seeks only
reasonable attorney fees, damages, and other actual costs under
§ 19.37(2)(a).        Whether a record should have been in existence
at the time of the request is a matter of the open meetings law,
not public records law.           Certainly the Commission cannot avoid a
public records request by failing to timely create a record.               In
this case, however, the Commission responded to the Newspaper
with reasonable diligence and released the requested information
while maintaining that it was not legally required to do so and
at a time when no record existed.            As will be discussed, neither
the facts nor the law support the conclusion that the Newspaper
prevailed in "substantial part."23
                                1. Public Records Law
        ¶55    The public records law "is designed to make existing
records        available   to     the   public   unless   withholding    such
documents is specifically authorized by law."                State ex rel.
Gehl v. Connors, 2007 WI App 238, ¶13, 306 Wis. 2d 247, 742
N.W.2d 530 (emphasis added) (citing Zinngrabe, 146 Wis. 2d at
633).         However, "the public records law does not require an


        23
       The Newspaper cross-petitioned this court for review,
seeking to have us create a new test for recovery of reasonable
attorney fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2). It argues that "[t]his Court should hold that when
a custodian abandons its stated reasons for denial, it has no
defense at all and the requester necessarily has prevailed 'in
substantial part' under Wis. Stat. § 19.37(2)."   We decline to
adopt this proposed test in the present case.        As we will
explain, the Commission has a valid defense for denying the
Newspaper's   request:  no  record   containing  the   requested
information existed.

                                        29
                                                                              No.    2013AP1715



authority to provide requested information if no record exists,
or to simply answer questions about a topic of interest to the
requester."        Wis. Dep't of Justice, Wisconsin Public Records
Law,    Compliance        Outline,        at   18    (Sept.       2012),      available      at
http://www.doj.state.wi.us/sites/default/files/dls/public-
records-compliance-outline-2012.pdf.24                         See also Zinngrabe, 146
Wis. 2d at    635;        George    v.     Record        Custodian,     169    Wis. 2d 573,
579, 485 N.W.2d 460 (Ct. App. 1992) ("The [public] records law
does not require the custodian to . . . create a record for the
benefit of a requester.").                 While a record will always contain
information, information may not always be in the form of a
record.

       ¶56   "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."         Wis.    Stat.        § 19.35(4)(a).           "For    purposes      of   the
production of public records under Wis. Stat. § 19.35(4)(a), the
statutory language 'as soon as practicable' implies a reasonable
time for response . . . ."                 Watton v. Hegerty, 2007 WI App 267,
¶36, 306 Wis. 2d 542, 744 N.W.2d 619, rev'd on other grounds,
2008 WI 74, 311 Wis. 2d 52, 751 N.W.2d 369.                            See also Milwaukee
Journal Sentinel, 341 Wis. 2d 607, ¶56 & n.31 (explaining that


       24
       See also Wis. Stat. § 19.39 ("Any person may request
advice from the attorney general as to the applicability of this
subchapter under any circumstances.    The attorney general may
respond to such a request.").

                                               30
                                                                                      No.       2013AP1715



§ 19.35(4)(a) allows a reasonable time for a response).                                           "[W]hat
constitutes a reasonable time for a response by an authority
depends     on    the   nature     of     the       request,             the    staff          and    other
resources available to the authority to process the request, the
extent      of    the   request,        and        other           related          considerations."
WIREdata,        Inc.   v.   Vill.       of        Sussex,          2008       WI    69,       ¶56,        310
Wis. 2d 397, 751 N.W.2d 736 (internal quotation marks omitted).
"Accordingly,       whether       an   authority              is    acting          with    reasonable
diligence in a particular case will depend upon the totality of
the circumstances surrounding the particular request."                                         Id.
      ¶57    The public records law provides a requester with the
ability     to    enforce    a     public          records          request          in    a    mandamus

action.      Wis. Stat. § 19.37(1).                      A requester who prevails "in
substantial part" in such an action is entitled to "reasonable
attorney fees, damages of not less than $100, and other actual
costs . . . ."          Wis. Stat. § 19.37(2)(a).                          However, "[i]f the
failure     to     timely    respond          to     a    request          was       caused          by     an
unavoidable        delay     accompanied                 by        due     diligence             in        the
administrative           processes, . . . the                        plaintiff              has           not
substantially prevailed."                Racine Educ. Ass'n v. Bd. of Educ.
for   Racine       Unified    Sch.       Dist.,           145       Wis. 2d 518,               524,       427
N.W.2d 414 (Ct. App. 1988) ("Racine Educ. Ass'n II") (citing
Racine    Educ.     Ass'n    v.    Bd.    of        Educ.          for    Racine          Unified         Sch.
Dist.,    129     Wis. 2d 319,         327,        385    N.W.2d 510            (Ct.        App.      1986)
("Racine Educ. Ass'n I")).                Stated differently, if a custodian
acts with reasonable diligence, a requester is not entitled to


                                               31
                                                                               No.     2013AP1715



reasonable attorney fees, damages, and other actual costs under
§ 19.37(2) on grounds of unlawful delay.                         See id. at 524-25.
                            2. The Parties' Arguments
     ¶58     The Newspaper argues that it filed this lawsuit to
obtain a record that it was led to believe existed, but to which
access    was    being     denied.         The    Newspaper         asserts          that   under
Breier, 89 Wis. 2d 417, the Commission is limited to defending
on the reasons it gave for denying access and is precluded from
explaining that no record existed.                         The Newspaper argues that
because the Commission no longer relies on the reasons that it
originally       provided      for     denying          the       Newspaper's          request,
reasonable attorney fees, damages, and other actual costs must

be awarded as a matter of law.
     ¶59     The     Newspaper       further      argues         that   it     prevailed        in
substantial      part      because    the    Commission           did    not    respond        and
provide the requested information "as soon as practicable and
without delay," as required by Wis. Stat. § 19.35(4)(a).25                                     The
Newspaper       is   not     still     seeking         a    record.            Instead,        the
Newspaper's      argument      focuses      on    the       timing      of   the      response,
contending that "[t]he [Commission's] initial response, coming
nearly    two    weeks     after     the    request,        was    hardly       'as     soon    as
practicable        and    without     delay.'"             Similarly,        the      Newspaper
contends    that     it    "was     entitled      to       the    information         when     the

     25
       Relying on an attorney general opinion, the Newspaper
argues that a "24-hour delay" is illegal under the public
records law. See 67 Wis. Op. Att'y Gen. 117, 119-20 (1978) (OAG
24-78) ("I am not aware of any sufficient reason to justify a
24-hour delay.").

                                             32
                                                                           No.     2013AP1715



Newspaper first requested its production, not a month later when
the [Commission] actually disclosed it."                      The Newspaper accuses
the Commission of "deliberate failure to create the record" and
"strategically            delaying       disclosure"           "for        an       illicit
purpose, . . . to            shield      public           officials        from      public
accountability for their official actions."                        The Newspaper urges
this court to "hold it is entitled to recover damages for that
delay, along with reasonable attorney fees and costs, under Wis.
Stat. § 19.37(2)."
       ¶60    On    the     other    hand,    the    Commission       argues      that     the
Newspaper      did    not     prevail    in        substantial      part    because        the
Commission acted reasonably.                  Foremost, the Commission argues

that it could not be required to produce a record that did not
exist at the time of the request.                    No record existed until the
end    of    May    2012.      The    lawsuit       was    filed    about    two     months
earlier,      in    March    2012.      The    Commission      argues       that    we     may
consider its affirmative defense——that no record responsive to
the Newspaper's request existed at the time of the request——
because this defense is based on a statutory exception to the
public records law.            According to the Commission, the court of
appeals in Blum, 209 Wis. 2d 377, clarified that Breier does not
prevent a court from considering whether a requested record is
statutorily exempt from disclosure under the public records law,
even    if    the     statutory       exemption        was    not     mentioned       in    a
custodian's response to a public records request.
       ¶61    The    Commission       further       argues    that    even       though     no
record existed and it was not required to provide information,
                                              33
                                                                        No.    2013AP1715



it acted reasonably and provided the information requested by
the    Newspaper.       The    Commission         argues    that    it        reasonably
believed that the Newspaper was requesting information, not a
record, and that it did not actively mislead the Newspaper into
believing that a record existed.               The Commission emphasizes that
the Newspaper's requests were ambiguous and that the Newspaper
could not reasonably have thought that meeting minutes existed
only two days after the meeting at issue.                    The Commission also
argues that it responded to the requests for information in a
timely manner.       It argues that "[n]either the Public Records Law
nor the Open Meetings Law requires it to create a record earlier
than it would in the regular course of its business for the

purpose      of   responding   to     a   [public]    records      request."         The
Commission argues that "there is no requirement in the law that
the [Commission] create the record immediately."                         According to
the Commission, the Newspaper's accusation that the Commission
deliberately failed to create a record "to shield [its members]
from      accountability        for       their      official           actions"      is
"preposterous."         The    Commission      argues      that    it    created     and
approved the meeting minutes at issue according to its regular
course of business and that a "clerical error" slightly delayed
their creation.        The Commission argues that "[t]hese facts do
not support a conclusion that the [Commission] was covering up
its 'failure' to create these minutes earlier."

                               3. Breier and Blum
       ¶62    The Newspaper argues that Breier bars the Commission
from raising a defense that no responsive record existed at the
                                          34
                                                                                   No.    2013AP1715



time of the Newspaper's request.                             The Commission argues that,
under Blum, it may assert that defense although it did not raise
that defense before the Newspaper filed the mandamus action.
      ¶63    In    Breier       The        Milwaukee         Journal       requested      that    the
Milwaukee        Police     Department             disclose         daily     arrest        records,
including the charges upon which persons were arrested.                                      Breier,
89 Wis. 2d at 420-21.                The police department refused to disclose
records     of    the     charges,          so    The       Milwaukee       Journal      brought    a
mandamus action seeking an order compelling disclosure of those
records.     Id. at 421-22.               The Breier court stated:

      The duty of the custodian is to specify reasons for
      nondisclosure and the court's role is to decide
      whether the reasons asserted are sufficient.  It is
      not the trial court's or this court's role to
      hypothesize reasons or to consider reasons for not
      allowing inspection which were not asserted by the
      custodian.

Id.
      ¶64    Unlike       the       case     at    issue,          in    Breier    the    requested
records     existed       at        the     time       of     the       request.      The    police
department denied the public records request for public policy
reasons     in    order        to     protect          the     arrested       individuals        from
"possible personal and economic harm."                              Id. at 421.          This court
held "as a matter of law that the harm to the public interest in
the form of possible damage to arrested persons' reputations
does not outweigh the public interest in allowing inspection of
the police records which show the charges upon which arrests
were made."        Id. at 440.              Accordingly, this court remanded for

the   circuit      court        to        issue    a        writ    of     mandamus      compelling

                                                   35
                                                                                No.       2013AP1715



disclosure of the requested records.                        Id.     In the present case,
the circuit court could not have ordered that relief at the time
the lawsuit was commenced because no record existed then, and in
the Commission's ordinary course of business a record would not
have existed until the next regular meeting in late March.
        ¶65    Thus,    Breier         will      sometimes      prohibit        a    court         from
considering reasons for denying a public records request that
were not asserted by a custodian prior to the commencement of a
mandamus action.             See Oshkosh Nw. Co. v. Oshkosh Library Bd.,
125 Wis. 2d 480, 484, 373 N.W.2d 459 (Ct. App. 1985) ("Where
inspection      is     denied,         it   is    the    custodian,       not       the   attorney
representing the governmental body after a mandamus action is

commenced, who must give specific and sufficient reasons for
denying inspection.").                 But Breier does not always require that
prohibition, especially if no record exists.
        ¶66    In    Blum     a    student,        Elizabeth       Blum,    filed         a    public
records       request       with    the       Johnson     Creek     Board       of    Education.
Blum, 209 Wis. 2d at 379.                   The request sought records indicating
the interim grades of a student who received a scholarship over
Blum.         Id.       The       board       denied      the   request,        stating            that
calculating interim grades would be burdensome and that interim
grades    were       immaterial         for      determining       the    recipient           of    the
scholarship.         Id. at 380.            Blum then filed a mandamus action to
compel the board to disclose the requested records.                                 Id.
        ¶67    The    court       of    appeals         affirmed    the    circuit            court's
order denying Blum's mandamus petition.                             Id. at 380, 391-92.
The   court     of     appeals         held      that    Wis.   Stat.      § 118.125,           which
                                                  36
                                                                             No.     2013AP1715



states    that     pupil    records      maintained       by     a   public        school    are
confidential,          exempted    the       requested    records      from        disclosure
under the public records law.                       Id. at 385.         "[U]nless there
exists:      (1)   a    'clear    statutory         exception';      (2)     a     common    law
limitation; or (3) an overriding public interest in keeping the
record confidential, the information sought must be disclosed."
Id. at 383 (quoting Hathaway v. Joint Sch. Dist. No. 1, City of
Green Bay, 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984)).                                     The
court of appeals concluded that § 118.125 was a clear statutory
exception to disclosure.             Id. at 385.
       ¶68    The court of appeals rejected Blum's argument that,
because the board did not rely on Wis. Stat. § 118.125 in its

response to her public records request, Breier forbade the court
from   considering         whether    that      statute     exempted        the     requested
records from disclosure.                 Id. at 391-92.              Because the board
relied on § 118.125 in its response to the mandamus petition,
"[t]he trial court thus was not required to 'hypothesize' the
applicable         statutory       exception,"           which       would       have       been
prohibited under Breier.                 See id. at 388 n.6.                    The court of
appeals concluded, "the Board's insufficient denial letter to
Blum does not prevent a court from determining whether a 'clear
statutory exception' applies to the requested interim grades."
Id. at 388.
       ¶69    Thus, under Blum, Breier does not prohibit a court
from     considering       whether       a    requested     record         is    statutorily
exempt from disclosure under the public records law, even if a


                                               37
                                                               No.    2013AP1715



custodian did not assert the statutory exemption prior to the
commencement of a mandamus action.
      ¶70   The Newspaper urges this court to rely on Breier and
conclude    that   it    has   prevailed    in   substantial       part.     The
Newspaper argues that Breier requires a custodian to be specific
in its response to a public records request so that a requester
can   challenge    the   response   and    so    a   court   can    review   the
sufficiency of the response.          The Newspaper contends that the
Commission "actively misled the newspaper into believing that it
had created a record of the motion at issue," only to assert
that no record existed after the mandamus action was filed.                  The
Newspaper argues that, had it known that no record existed, it

would have filed suit under the open meetings law instead of the
public records law.
      ¶71   The Commission urges us to rely on Blum and thus allow
it to raise its affirmative defense that no responsive record
existed at the time of the Newspaper's request.               It argues that
a record's non-existence provides a clear statutory exception to
disclosure under the public records law.             The Commission reasons
that the public records law does not require the creation of a
record or the release of a record that does not exist.                       The
Commission further argues that "there is no evidence . . . that
the   [Commission]       purposefully      or    maliciously       misled    the
Newspaper" into believing that a record existed.                   Rather, the
Commission argues that it mistakenly believed that the Newspaper
was requesting information, not records, and that the "lack of
clarity" of the Newspaper's requests "resulted in confusion."
                                     38
                                                                        No.     2013AP1715



      ¶72     To    determine    whether       the     Commission     may     assert   its
affirmative defense that no responsive record existed at the
time of the Newspaper's request, we will determine whether a
requested     record's       non-existence       provides       a    "clear     statutory
exception"     to    disclosure      under      the    public   records       law.     See
Blum, 209 Wis. 2d at 388.            "The [public] records law affords the
right to inspect and make or receive a copy of a 'record.'"
George, 169 Wis. 2d at 579 (quoting Wis. Stat. § 19.35(1)(b)).
Wisconsin      Stat.        § 19.35(1)(a)        states       that,     "[e]xcept       as
otherwise provided by law, any requester has a right to inspect
any   record."            Wis.   Stat.    § 19.35(1)(a)             (emphasis    added).
Similarly,     § 19.35(1)(b)         states     that,       "[e]xcept    as     otherwise

provided by law, any requester has a right to inspect a record
and   to    make     or    receive   a   copy     of    a    record."         Wis.   Stat.
§ 19.35(1)(b) (emphases added).
      ¶73     Accordingly, the public records law provides neither a
right to inspect nor a duty to disclose a non-existent record.
See George, 169 Wis. 2d at 579 (holding that "[a] non-existent
record      cannot    be    inspected     or     copied"      and     "[t]he    [public]
records law does not require the custodian to . . . create a
record for the benefit of a requester.").                     A governmental entity
may not circumvent disclosure of a record by failing to create a
record that it is legally required to create.                            However, the
public records law does not require the government to create a
record or release a non-existent record.                     The public records law
"is designed to make existing records available to the public
unless withholding such documents is specifically authorized by
                                           39
                                                                                  No.        2013AP1715



law."         Gehl,       306     Wis. 2d 247,             ¶13    (emphasis      added)       (citing
Zinngrabe, 146 Wis. 2d at 633).                             See also Compliance Outline,
supra,        at    18    ("The       public         records      law     provides      access      to
existing       records          maintained          by    authorities.").          Thus,       "[t]he
public    records         law     does     not       require      an     authority      to    provide
requested information if no record exists . . . ."                                      Compliance
Outline,       supra,       at    18.          In    short,       a    record's   non-existence
provides a clear statutory exception to disclosure under the
public records law.
        ¶74        We are not persuaded by the Newspaper's argument that
Blum    applies          only    to   a   confidentiality-based                 clear    statutory
exception to disclosure.                  The court of appeals in Blum held that

it may consider a "clear statutory exception" to disclosure,
although the custodian did not rely on the exception in its
response to a public records request.                             Blum, 209 Wis. 2d at 387-
88.     Although the court discussed a confidentiality statute, it
did so because that kind of statute was at issue in that case.
The    court        did   not     suggest           that    its       holding   was     limited     to
confidentiality-based statutory exceptions.                                Further, in Breier,
the court did not address the issue of whether a custodian could
assert a statutory exception, such as a record's non-existence,
for the first time after a mandamus action has been filed.
        ¶75        We are also not persuaded by the Newspaper's argument
that the Commission's affirmative defense is barred because the
Commission,          by    failing        to    disclose          that    no    record       existed,
hindered both the Newspaper's ability to prepare a challenge and
a court's ability to review the sufficiency of the Commission's
                                                     40
                                                                                  No.    2013AP1715



denial.        Accepting this argument would require us to overturn
Blum, which we are unwilling to do.                             In fact, the court of
appeals in Blum rejected the same argument.                               See id. at 386-88.
The   court         of    appeals    in     Blum    explained        that    Breier       requires
custodians to be specific in their responses to public records
requests       so        that    courts     can    review      the    sufficiency          of   the
responses.               Id.    at   386-87.            However,     if     "the    information
requested is specifically exempted by statute from disclosure,"
the legislature has already determined that the information need
not be disclosed.                Id. at 387.            "[A] reviewing court's de novo
determination              whether       certain         information         is     statutorily
exempted from disclosure is not aided by anything a custodian

might        say    in     a    denial    letter,        nor   is    it     deterred       by   the
custodian's silence."                    Id. at 387-88.             In the present case,
although the Commission's responses did not state that no record
existed, that omission does not impair our ability to determine
whether a statutory exemption to disclosure applies.26
        ¶76        We    conclude    that    under       the   circumstances            presented,
this court may consider whether a record existed when the public
records request was made, even though the custodian's response


        26
       We also disagree with the Newspaper's argument that we
should ignore the Commission's affirmative defense because the
Commission actively misled the Newspaper into believing that a
record existed.     There is no evidence that the Commission
actively misled the Newspaper. The Commission did not know
whether a responsive record existed when it responded to the
requests.   In addition to the fact that no record existed that
could be produced, the Commission acted reasonably in responding
to what it deemed to be a request for information.

                                                   41
                                                                                       No.    2013AP1715



to the request did not specifically state that the record did
not exist.          See id. at 388 (holding that a court may consider a
clear statutory exception to disclosure even if a custodian did
not rely on that exception in its response to a public records
request).           Based on the foregoing discussion, the Commission
lawfully denied the Newspaper's request because no responsive
record existed at the time of the request.
                               4. The Requests and Responses
        ¶77    What complicates and also clarifies this case is that
each party may have made mistakes that exacerbated confusion
regarding       what          was    being     requested          and       the    fact           that       no
responsive record existed.                     However, those misunderstandings do

not   equate        to    a    public      records       law   violation           such       that          the
Newspaper       prevailed            "in   substantial         part."             It    is        in     part
because       the    Commission            acted     with      reasonable          diligence                and
provided more information than the public records law required
and no record existed to produce, that the Newspaper has not
prevailed       in       substantial         part       such   that         it    is    entitled             to
recover       reasonable            attorney    fees,       damages,         and       other        actual
costs    under       Wis.       Stat.      § 19.37(2).            A     review         of    the       facts
highlights the reasonable confusion.
        ¶78    The       Commission         held     a     special          meeting          in     closed
session on February 20, 2012.                       Two days later, Christine Won, a
reporter       for       the    Newspaper,          e-mailed          two    commissioners                  and

Racine Deputy City Attorney Scott Letteney.                                  Won's e-mail asked
for   information,             not    a    record.          Her       e-mail      stated,              "I    am
officially       asking         on    the    record       to      know      the    vote           of     each
                                                   42
                                                                          No.    2013AP1715



commissioner       from      the        closed    [Commission]         meeting       Monday
[February 20, 2012,] in which they decided to reopen the police
chief search."        (Emphasis added.)
      ¶79    Won   sent     a    clarification         e-mail    hours      later,     which
stated: "Under statute 19.88(3) —— I am asking for the recorded
motions     and    votes     of     each     []    Commissioner        at    the     closed
meeting . . . ."           Although this time Won asked for "recorded
motions     and    votes,"        her    request       was     based   on    Wis.      Stat.
§ 19.88(3), which is part of the open meetings law, not the
public     records    law.         Section       19.88(3)      requires     governmental
bodies to record their "motions and roll call votes."                                   Wis.
Stat. § 19.88(3).          That statute does not expressly state when a

record must be created.27                In the same e-mail, Won again asked
for information, stating, "I would appreciate this information
as soon as practicable and without delay."                      (Emphasis added.)
      ¶80    The Commission's March 7 response stated that "[y]our
request     for    the    specific        vote    of     the    [Commission] . . . is
denied."     (Emphasis added.)              Similarly, in its March 9 e-mail,
the Commission stated that it had a lawful basis "for denying
the   release        of    the     vote     of     the       [Commission]       from     its
February 20, 2012 meeting."                (Emphasis added.)           Although that e-


      27
       The   Newspaper   argues  that   Wis.   Stat.  § 19.88(3)
implicitly requires a record to be created "as soon as
practicable and without delay."   See Wis. Stat. § 19.35(4)(a).
We express no opinion on this argument.    However, we note that
the "as soon as practicable and without delay" language of
§ 19.35(4)(a) allows a reasonable amount of time to respond to a
public records request.

                                             43
                                                                                 No.   2013AP1715



mail stated that the Commission was "performing the required
balancing test for the release of records," it seemingly meant
that it was applying this balancing test to determine whether it
should         release        the     requested           information             immediately.
Specifically,          the    Commission         stated       that    it       understood     "the
import    to     the     [Newspaper]        of    having       this       information"        and,
therefore, offered to release "the specifics of the February 20
vote" within five business days of hiring a new police chief.
(Emphasis added.)
        ¶81     On March 12 the Newspaper's final request again asked
for information, not a record.                         The Newspaper stated that it
"would like the information immediately."

        ¶82     On March 22, two days after hiring a new police chief,
the     Commission        e-mailed      the       requested          information        to     the
Newspaper.           The Commission did not release a record at that time
because no record containing the requested information existed
before May 21.           The Newspaper argues, in part, that waiting this
long for the information is waiting too long.                              The Commission is
under    no     obligation      to    provide         information         in    response      to   a
records request.
        ¶83     The Commission reasonably interpreted the Newspaper's
e-mails as requests for information, not minutes.                                Indeed, it is
difficult        to     imagine      that     a       local    reporter,         sophisticated
requester       and     wordsmith,      who       displayed      familiarity           with    the

Commission,           would   have     thought          that    meeting          minutes      were
available a mere two days after a special meeting was held and
before        they    would    have    been       completed          in    the    Commission's
                                                 44
                                                                                       No.    2013AP1715



ordinary course of business.                     Perhaps that is why the requests
and responses are framed in terms of access to information.                                               In
fact, the Newspaper did not clarify until September 2012, when
it   moved     for    summary       judgment,         that       it    was       actually       seeking
meeting minutes and that the information it received in March
2012 was unsatisfactory.                   Could both sides have done better?
Yes.     Although not required, the Newspaper could have specified
that    it    wanted       only    an    actual       record      or,       more       specifically,
minutes.        The     Commission        could       have       clearly         replied       that       no
record       existed.        However,          the    Newspaper's            requests          and       the
Commission's          responses         demonstrate          a        dialogue          between          the
parties       wherein       information         was     provided            in     response         to     a

request       for    information         at     a    time    when       no        record      existed.
Notably,      the     Newspaper         does    not    complain          that          it    failed       to
receive the record.
        ¶84    Nonetheless, the circumstances presented in this case
demonstrate         that     the     Commission         provided,            rather          than    hid,
information pertinent to the request.                            The Newspaper filed this
action before the record was created and after it knew that it
would    receive       the    information.             The       creation         of    the     record,
rather than the lawsuit, caused the record's production.                                                 The
Newspaper's         argument       rests       upon    the       timing          of    the    record's
creation under the open meetings law.                                 Again, this is not an
open meetings law case.

        ¶85    We    note     that      the     Commission            was        not    required         to
respond by a specific date and time.                         The Commission could have
answered in a number of ways.                        It was not necessarily required
                                                 45
                                                                                    No.    2013AP1715



to notify the Newspaper that it would provide the information
after it decided to do so.                     "[U]nder [Wis. Stat.] § 19.35(4)(a),
receipt of [a public] records request triggers either a duty to
respond       to     the    request       or    a    duty       to    produce      the    requested
records."          ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶24,
259 Wis. 2d 276, 655 N.W.2d 510.                            "Wisconsin's Public Records
Law      does         not         explicitly             require        [a        custodian]       to
notify . . . the requester, as long as the [custodian] 'fill[s]
the request' and does so 'as soon as practicable and without
delay.'"           Racine Educ. Ass'n II, 145 Wis. 2d at 523 (quoting
Wis.    Stat.       § 19.35(4)(a)).              Nevertheless,           the       Commission      did
both.         It    notified       the    Newspaper         on       March    9    that    it   would

release        the     requested          information            soon.             The     Newspaper
responded——by          filing       a    lawsuit.          On    March       22    the    Commission
followed through and provided the Newspaper with the requested
information, albeit not in record form.                              The Newspaper responded
by serving the lawsuit on the Commission.                              Moreover, even before
the Newspaper made its public records request, the Commission
had already issued a press release.
        ¶86    While        the    public       records          law    does       not    impose    a
specific timing requirement instructing when to file a mandamus
action,       when     a    mandamus        action         is    filed       may    significantly
influence whether the requester has "prevailed" in "substantial
part" so to be awarded reasonable attorney fees, damages, and
other    actual        costs.           Here,       the    timing      and    language       of    the
requests and responses, the timing of the filing and service of
the lawsuit, the voluntary provision of information, and the
                                                    46
                                                                        No.     2013AP1715



fact that no responsive record existed, all play a role in our
analysis that the Newspaper has not prevailed in substantial
part so to receive the award that it seeks.28                       The lawsuit was
not causally related to the release of the record——the record
was not in existence when the lawsuit was commenced or even
served.      Here, the Commission's conduct was reasonable under the
circumstances.
       ¶87     As a practical matter, in many smaller jurisdictions,
a local governmental body can be swamped with public records
requests and may need a substantial period of time to respond to
any given request.              See Racine Educ. Ass'n II, 145 Wis. 2d at
523-24 (holding that a custodian timely released a record 35

days after it was requested).               Many jurisdictions, like the one
in   the     case   at    issue,     function     with   the   help     of    part-time,
volunteer      citizens.          Governmental      meetings      may   occur       fairly
infrequently.            Even   in   a   larger    jurisdiction,        a    significant
period of time may be needed to respond to a public records
request.       For example, the court of appeals has held that the
passage of 41 days between a request and the City of Milwaukee
Police       Department's        release    of     the    requested          record     was
reasonable.         Watton,        306   Wis. 2d 542,      ¶36,    rev'd       on     other
grounds, 311 Wis. 2d 52.              The Newspaper is incorrect in arguing
that    Wis.    Stat.      § 19.35(4)(a)     requires      immediate         disclosure.

       28
       Even if the Newspaper would have known that no record
existed and pursued an action under the open meetings law, it
would have been required to file a complaint with a district
attorney and then wait 20 days for a response from the district
attorney before filing suit. See Wis. Stat. § 19.97(1), (4).

                                           47
                                                                          No.   2013AP1715



See id.        The public records law is less exact than the Newspaper
wishes.
        ¶88    We   conclude         that    although       the    requests     and    the
responses are less than precise, the Newspaper has not prevailed
in    substantial        part   so    to    entitle    it    to   reasonable    attorney
fees,     damages,        and    other       actual     costs     under     Wis.      Stat.
§ 19.37(2).         No    record      existed.        Although     not    required,     the
timing of the Commission's voluntary release of the requested
information further demonstrates that the Newspaper's requested
relief is not justified.                    The Newspaper argues that it "was
entitled to the information when the Newspaper first requested
its production, not a month later when the [Commission] actually

disclosed it."           We note that what the Newspaper received a month
later was, in fact, information, not a record.                           The Newspaper's
argument about the timing of the release is curious given that
it seems to argue that the information, not a record, should
have been released earlier.                   In fact, the Newspaper had the
information that it requested, just not in record form, before
it served this lawsuit on the Commission.                         Therefore, contrary
to the Newspaper's assertion, the public records law does not
declare that the Newspaper prevailed in substantial part when it
made the request and filed and served the lawsuit before any
record        existed,    and    when       the    Newspaper's      request     was     for
information, which was provided, even though the Commission was

not    required     to    provide      information      in    response     to   a   public
records request.
                                      5. Precedent
                                              48
                                                                                No.    2013AP1715



        ¶89    Precedent          instructs      us    that,        as        public    records
litigation       is    concerned,         the   Newspaper      has       not    prevailed       in
substantial part in this action because the Commission acted
with     reasonable      diligence.             See   Racine      Educ.       Ass'n     II,    145
Wis. 2d at 524.
        ¶90    In Racine Education Association I the Racine Education
Association       made       a    public     records     request         to    the     Board    of
Education       for    the       Racine    Unified    School       District       on    May    18,
1984.        Racine Educ. Ass'n I, 129 Wis. 2d at 323.                          The board did
not respond, so the association filed a mandamus action on June
7, 1984.       Id.     Also on June 7, the board filed an answer to the
mandamus       petition,          arguing    that     "it    was     exempt       under       sec.

19.35(1)(l), Stats., which states that compliance with a public
records request is not mandated if a new record would need to be
made by extracting information from existing records."                                  Id.     On
June    22,    1984,     the      board     "furnished      the    information"          to    the
association.          Id.        Thereafter, the circuit court held that the
action was moot and denied costs to the association.                                   Id.     The
association appealed, seeking "attorney fees and costs."                                Id.
        ¶91    The court of appeals held that the association was not
entitled to attorney fees and costs under Wis. Stat. § 19.37(2)
because it had not prevailed in substantial part.29                              Racine Educ.

        29
       In Racine Education Association I the court of appeals
adopted a test for determining whether a plaintiff prevailed in
substantial part and thus was entitled to reasonable attorney
fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2).   Racine Educ. Ass'n v. Bd. of Educ. for Racine
Unified Sch. Dist., 129 Wis. 2d 319, 326-28, 385 N.W.2d 510 (Ct.
App. 1986) ("Racine Educ. Ass'n I").      The court of appeals
                                                49
                                                                           No.        2013AP1715



Ass'n II, 145 Wis. 2d at 525.                   The court of appeals "conclude[d]
that the request was filled as soon as practicable."                                    Id. at
524.    The court of appeals reasoned that "[t]he board presented
evidence     that      three   computer         programs      had   to    be     written     to
extract the information from the archived computer tapes."                                  Id.
Further, "[t]here were duplication errors and the usual program
'bugs' to be corrected."                 Id.     The public records request "was
diligently,       if     not   expediently,          being    worked      on     by    several
departments simultaneously."                   Id. at 523.     "The board's position
throughout has been that it was not required to turn over the
information         to     [the      association],            but        was     doing       so
voluntarily . . . ."               Id.         Because     "the     failure      to     timely

respond      to   a      request    was        caused    by   an    unavoidable          delay
accompanied by due diligence in the administrative processes,"
the association "has not substantially prevailed."                             Id. at 524.
       ¶92   Similarly,        in        the     present      case,      the     Commission
responded with reasonable diligence to the Newspaper's public
records      request.           Like       the       board    in      Racine      Education
Association, the Commission voluntarily released the requested
information but maintained that it was not required to release
information because no responsive record existed.                              In fact, the


remanded the matter for the circuit court to make factual
findings.   Id. at 329.  On remand, the circuit court "awarded
attorney's fees" to the association. Racine Educ. Ass'n v. Bd.
of Educ. for Racine Unified Sch. Dist., 145 Wis. 2d 518, 525,
427 N.W.2d 414 (Ct. App. 1988) ("Racine Educ. Ass'n II").   On
appeal the court of appeals in Racine Education Association II
reversed, holding that the association was not entitled to
attorney fees. Id.

                                                50
                                                                                   No.     2013AP1715



Commission released the requested information about three weeks
before being served with this lawsuit, one and a half months
before filing an answer to the mandamus petition, and two months
before    drafting           the    meeting          minutes      at     issue.         Before     the
minutes      were       drafted,          no     record         containing        the     requested
information existed.                The Commission was even more diligent than
the board in Racine Education Association because the Commission
responded twice to the Newspaper's request before the Newspaper
filed this lawsuit, whereas the board did not respond prior to
being sued.
       ¶93    Like the duplication errors and computer "bugs" that
prevented the requested record from being created earlier in

Racine       Education            Association,            a     clerical    error         may    have
contributed        to    the       timing      of     the      Commission's       creation       of    a
record.      The Commission intended to approve the minutes for the
February      20    special         meeting          at   its     next    regular        meeting      on
March 19,      according            to    its        standard      practice       for     approving
minutes.      But it was unable to do so because the minutes had not
been   drafted          in    time       for     the      March    meeting.         Commissioner
Rogers——the         Commission's               part-time         volunteer        secretary        who
typically       takes         notes        and       drafts       minutes     for        Commission
meetings——was unable to take notes on the February 20 special
meeting      because         he    could       not     physically        attend    the     meeting,
which was called on short notice.                             Accordingly, the minutes were
drafted shortly before and approved at the Commission's next
regular meeting, on May 22, according to its standard practice.
In fact, the Commission has maintained that it was not legally
                                                     51
                                                                     No.      2013AP1715



required to create those minutes, but it created them anyway.
These facts do not support the Newspaper's accusation that the
Commission      "deliberate[ly]      fail[ed]      to    create   the      record"     in
order to avoid public scrutiny for its official acts.
       ¶94    The     Commission's   reasonable      conduct      stands      in    stark
contrast to record custodians' conduct that resulted in awards
of reasonable attorney fees, damages, and other actual costs in
other cases brought under Wis. Stat. § 19.37.                     For example, in
State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 422 N.W.2d 898
(Ct. App. 1988), an inmate named Ralph Vaughan made a public
records request on January 26, 1987, seeking records of certain
parole    board       staff   meetings.        Vaughan,    143    Wis. 2d at         869.

Having       received    no   response,        Vaughan    repeated      his     records
request several weeks later on February 19.                    Id.      Still having
received no response, he filed a mandamus action approximately
one month later on March 13.             Id.     Two weeks later, on March 31,
the    records      custodian,    Gail    Faust,     "supplied       the      requested
information and apologized for her lateness in responding to his
request."       Id.     Faust did not allege that the records did not
exist at the time of the requests.
       ¶95    The court of appeals held that Vaughan was "entitled
to costs, fees and damages under sec. 19.37(2) . . . ."                            Id. at
899.      It reasoned that, "[a]fter Vaughan began this mandamus
action, Faust complied with Vaughan's requests and, by letter,
apologized for the delay.                She gave no explanation for that
delay."       Id. at 872.      "Faust voluntarily ceased her unexplained
delay in complying with Vaughan's requests after he instituted
                                          52
                                                                                     No.     2013AP1715



this mandamus action.                    Vaughan prevailed in substantial part."
Id. at 873.
        ¶96    Similarly, a requester was awarded reasonable attorney
fees,        damages,    and        other       actual       costs       in     ECO,        Inc.,       259
Wis. 2d 276.            In    that       case,    ECO,       Incorporated           made     a    public
records       request        to    the    City     of    Elkhorn         on    April        24,       1996,
seeking engineering records.                       ECO, Inc., 259 Wis. 2d 276, ¶2.
"ECO    was     looking       for    these        records      because         of    severe           water
problems occurring on its property[.]"                             Id.        "ECO suspected the
problems were caused by a disruption of either a man-made or
natural         underground          flowage            as     a     result            of        utility
construction."               Id.         "[T]he    City       neither         responded          to    the

April 24, 1996 request nor produced the requested documents."
Id., ¶24.        In 1997 ECO sued the city to recover damages for the
water damage to ECO's property.                     Id., ¶3 n.3.
        ¶97    After several years passed without a response to its
1996 public records request, ECO made an identical request on
September 22, 2000.                 Id., ¶4.           On October 16, 2000, the city
denied the request, reasoning that the request improperly cited
to     the    federal        Freedom       of     Information        Act        instead          of     the
Wisconsin public records law.                      Id., ¶4.          On October 19, 2000,
ECO repeated its request.                      Id., ¶5.        On December 1, 2000, the
city clerk stated that she would provide the requested records
when they were ready.                     Id.     "ECO never received any further
response."        Id.         At ECO's suggestion, the district attorney's
office contacted the city at least twice, urging it to release
the requested records.                   Id.     On March 8, 2001, having heard no
                                                  53
                                                                                    No.       2013AP1715



further       response         from    the     city,      ECO    filed       a    mandamus       action
under Wis. Stat. § 19.37.                     Id., ¶6.          "The City conceded a lack
of    defense       to    the    [public]        records         request"         and     offered     to
release the records upon payment of copying costs.                                      Id., ¶8.      On
March 26, 2001, the city released the records to ECO.                                      Id.
        ¶98    "Despite         these        disclosures,            [ECO's       chief    executive
officer, E. Christian Olsen] remained suspicious that additional
records existed."               Id., ¶9.            Olsen went to city hall, where a
city    employee          showed      him     that       many    of    the       records      that    he
requested had not been disclosed.                          Id.        Those records had been
removed from the city engineer's office around the time ECO sued
the    city    in     1997      over     the    water      damage.            Id.       The    records

existed at the time of ECO's initial public records request in
1996.     Id., ¶¶3 n.3, 9.                  Olsen informed the city attorney that
many of his requested records had been withheld, and the city
attorney stated that he would investigate the matter.                                      Id., ¶10.
On March 29, 2001, ECO sent a letter to the city attorney's
office, requesting release of the withheld records.                                         Id.      The
city attorney's office never responded.                                 Id.         ECO moved the
circuit       court       to    award        "actual,       consequential            and      punitive
damages and costs and attorney's fees . . . ."                                   Id., ¶11.
        ¶99    The court of appeals held that "ECO is entitled to
costs,    fees      and        damages       pursuant      to    Wis.     Stat.         § 19.37(2)."
Id., ¶30.          It reasoned that, "under [Wis. Stat.] § 19.35(4)(a),
receipt of [a public] records request triggers either a duty to
respond       to    the    request       or     a    duty       to    produce       the    requested
records."          Id., ¶24.           "The City did not provide any response
                                                    54
                                                                                    No.     2013AP1715



whatsoever [to ECO's initial request in 1996] and therefore did
not    comply    with    [public]            records          law."       Id.         "Because       we
conclude that both the April 24, 1996 letter and September 22,
2000 letter were, in fact, [public] records requests which were
wrongfully      denied,       damages         must        be        addressed."           Id.,    ¶30.
"Because the City failed to respond to ECO's request and thus
failed    to      comply      with           the        requirements           of     Wis.       Stat.
§ 19.35(4)(a),        ECO     is       entitled          to     costs,     fees       and    damages
pursuant to Wis. Stat. § 19.37(2)."                           Id.
       ¶100 Unlike the record custodians in Vaughan and ECO, the
Commission      acted    with          reasonable         diligence        in       providing       the
requested information even when no record existed.                                    In addition

to issuing a press release, the Commission voluntarily released
the requested information before being served with this lawsuit
and    before     creating         a     record          containing       that        information.
Further, the Commission released that information when it said
that it would——shortly after it hired a new police chief.                                            By
contrast,       the   custodian          in        Vaughan          released        the     requested
records   after       being    sued,         provided          no     reason    for       failing    to
release the requested records earlier, and apologized for not
releasing the records sooner.                       In ECO, after being sued, the
city   conceded       that    it       had    no        defense       against       releasing       the
requested records.            Further, in ECO, the city still withheld
some of the requested records and it ignored ECO's subsequent
request to provide the records that had been withheld.
       ¶101 Furthermore, unlike the custodians in Vaughan and ECO,
the Commission responded to the requests before being sued.                                         In
                                                   55
                                                                          No.     2013AP1715



Vaughan Vaughan made two identical requests several weeks apart,
got no response to either request, and filed a mandamus action
approximately two months after making the initial request.                                 In
ECO the requester got no response after several years, so he
made more requests and filed a mandamus action.                           Some of those
later        requests    went     unanswered.          In     the   present     case,     the
Commission       issued       a   press    release         before   receiving     a    public
records       request,        responded     to   the       Newspaper's    first       request
within two weeks, and responded to the second request within two
days.        The Commission did not respond to the Newspaper's final
request because the Newspaper filed this lawsuit only four days
after        making     its    final      request.          However,     the    Commission

released the requested information to the Newspaper within six
days of this lawsuit being filed, before being served and before
any record existed.
        ¶102 A record custodian should not automatically be subject
to   potential          liability      under        Wis.    Stat.    § 19.37(2)(a)        for
actively providing information, which it is not required to do
in response to a public records request, to a requester when no
record exists.           While it might be a better course to inform a
requester that no record exists,30 the language of the public


        30
       See Wis. Dep't of Justice, Wisconsin Public Records Law,
Compliance Outline, at 18 (Sept. 2012) (citing State ex rel.
Zinngrabe v. School Dist. of Sevastopol, 146 Wis. 2d 629, 431
N.W.2d 734 (Ct. App. 1988)) ("If no responsive record exists,
the records custodian should inform the requester" of that
fact.), available at http://www.doj.state.wi.us/sites/default/
files/dls/public-records-compliance-outline-2012.pdf.

                                               56
                                                                            No.    2013AP1715



records      law   does    not    specifically           require     such    a    response.
Indeed, custodians in ECO and Vaughan were liable for attorney
fees, damages, and other actual costs, in part, because they did
not respond at all to public records requests when responsive
records      existed      at   the     time    of       the     requests.         Here,     the
Commission provided information to the Newspaper even though no
record    existed.         The    Commission's          responses     could       have    been
better but the Newspaper's requests could have been clearer.                                To
hold the Commission liable under § 19.37(2)(a) under the facts
of    this     case       would      discourage,          rather      than        encourage,
communication between the government and a requester.
      ¶103 While the Newspaper is entitled to a timely response,

it is without precedential support to argue that it was entitled
to an immediate response.              The Commission is under no obligation
to create a record in response to a request.                          The Newspaper is
not entitled to the release of information in response to a
public    records      request.          As    we       noted     earlier,    Wis.        Stat.
§ 19.35(4)(a) allows a custodian a reasonable amount of time to
respond to a public records request.                          Here, the Commission did
not   withhold     a   record     or    fail       to   timely     respond;       no   record
existed at the time of the request, the filing of the lawsuit,
or even when the lawsuit was served.
                                     IV. CONCLUSION
      ¶104 We conclude that under the facts of this case, the

Newspaper did not prevail in substantial part in this action and
is therefore not entitled to reasonable attorney fees, damages,
and other actual costs under Wis. Stat. § 19.37(2), because the
                                              57
                                                                                No.    2013AP1715



Commission      did    not    unlawfully           deny    or    delay       release     of     the
subject      record.         Whether        the       Commission        violated       the     open
meetings      law   is    not   properly           before       the     court       because     the
Newspaper did not request a district attorney to commence an
action under Wis. Stat. § 19.97.                       Under Blum, 209 Wis. 2d 377,
we    may    consider     the   Commission's              defense       that    a     responsive
record did not exist at the time of the request even though the
Commission first raised this defense in the mandamus action.
       ¶105 In other words, the Newspaper is not entitled to its
requested relief because its request is not supported by the
facts of this case or the law.                     Both parties contributed to any
misunderstanding, if there was one, of what was being requested

and    the    sufficiency       of     the        responses.            In   any      event,     no
responsive record existed at the time of the request and no
record was produced because of the lawsuit.                                  While a records
request need not be made with exacting precision to be deemed a
valid public records request, the Newspaper is a requester and
wordsmith      with      experience         and        sophistication.                Here,    the
requests could reasonably be perceived as seeking information,
rather than a record.            Although under no obligation to provide
information in response to a records request, the Commission
provided     the    Newspaper        with    the       answers     to    its    questions        by
providing information.           Moreover, the subject request cites the
open meetings law.           The Commission initially denied the records

requests      but   later     agreed        to    provide,       and     did    provide,        the
requested information.               At the time of the request and at the
time that the information was provided, no record existed that
                                                 58
                                                                No.     2013AP1715



could have been responsive to the request.                 The Newspaper no
longer seeks production of a record; it seeks only reasonable
attorney fees, damages, and other actual costs under Wis. Stat.
§ 19.37(2)(a).       Whether a record should have been in existence
at the time of the request is a matter of the open meetings law,
not public records law.         Certainly the Commission cannot avoid a
public records request by failing to timely create a record.                    In
this case, however, the Commission responded to the Newspaper
with reasonable diligence and released the requested information
while maintaining that it was not legally required to do so and
at a time when no record existed.           Neither the facts nor the law
support     the    conclusion     that     the   Newspaper     prevailed        in

"substantial part."
     By   the     Court.—The    decision   of    the   court   of     appeals   is
reversed.
     ¶106 DAVID T. PROSSER, J., did not participate.




                                      59
                                                                        No.    2013AP1715.ssa



       ¶107 SHIRLEY        S.     ABRAHAMSON,          J.     (concurring).              The
Newspaper no longer requests a record of the motion or votes
cast at the Commission's closed meeting on February 20, 2012.
The Newspaper obtained the information it was seeking about that
meeting    on    March     22,    2012.         This   was       six    days     after   the
Newspaper       filed    this    mandamus       action      against      the    Commission
under Wis. Stat. § 19.37(1)(a) (2011-12)1 and 20 days before the
Commission was served on April 22, 2012.
       ¶108 The Newspaper now seeks reimbursement under the public
records law for the attorney fees, damages, and other actual
costs it has incurred in bringing this mandamus action against
the Commission.

       ¶109 For     the    reasons    set        forth,      I    conclude        that   the
Newspaper is not entitled to recover reasonable attorney fees,
damages, or other actual costs, even though the Newspaper is
correct in many of its arguments about its compliance with the
public records law and the Commission's noncompliance with that
law.        I    write     separately       because         the        majority     opinion
confusingly       skirts    around    the       toughest      issues      presented      and
fails to provide needed guidance to record requesters, record
custodians, litigants and their counsel, and courts.
       ¶110 This concurrence is organized into four parts.2

       1
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
       2
       While there are many statements and discussions in the
majority opinion with which I take issue, I have limited the
scope of this concurrence to the subjects I consider most
pressing.

                                            1
                                                                         No.    2013AP1715.ssa



      ¶111 First,        I   set     forth      the     relevant    provisions         of     the
public    records     law      (Wis.        Stat.      §§ 19.21-.39)       and     the      open
meetings law (Wis. Stat. §§ 19.81-.98).
      ¶112 Second, I consider whether the request submitted by
the   Newspaper     constituted            a    valid    record     request       under       the
public records law.           I conclude that it did.               Any implication in
the majority opinion that the Newspaper's request was too poorly
worded to constitute a valid record request is, in my view,
misleading and plainly incorrect.
      ¶113 Third, I agree with the third-party amicus brief filed
by the Wisconsin Department of Justice that the Commission was
obligated    to     respond         to    the       Newspaper's     record       request       by

stating that the requested record did not exist.
      ¶114 Fourth, I consider whether the Newspaper is entitled
to recover reasonable attorney fees, damages, and other actual
costs from the Commission.                 This is the primary issue presented
in the instant case, and it turns on whether under Wis. Stat.
§ 19.37(2)(a),      the       Newspaper         has     prevailed    "in       whole     or    in
substantial part" in its mandamus action against the Commission.3
      ¶115 The      court      of        appeals      remanded     the   matter        to     the
circuit   court     to       determine         whether    the     Newspaper's       mandamus
action was a cause of the Commission's release of information on


      3
       Wisconsin Stat. § 19.37(2)(a) provides in relevant part
that "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) relating to access to a record or
part of a record . . . ."

                                                2
                                                                           No.       2013AP1715.ssa



March 22, 2012, such that the Newspaper prevailed in substantial
part       in    the    mandamus         action    and      is   entitled       to    reasonable
attorney fees, damages, and other actual costs.4
       ¶116 The Newspaper objects to the remand, contending that
the Commission's failure to tell the Newspaper that the record
it   was        requesting      did      not    exist       subjects     the    Commission       to
liability as a matter of law.
       ¶117 In          my     view,      the     Newspaper        has    not    sufficiently
tethered          its        argument      to     the        language      of        Wis.   Stat.
§ 19.37(2)(a), which grants attorney fees, damages, and other
actual      costs       when    a    requester        has    prevailed     in    whole      or   in
substantial part in a mandamus action.                             Thus, I conclude that

the Commission's failure to inform the Newspaper that it was
requesting a nonexistent record does not demonstrate as a matter
of law that the Newspaper has prevailed in substantial part in
its mandamus action against the Commission.                              Although it seems
that the Newspaper was sandbagged, the Newspaper is not entitled
to its requested relief.
                                                  I
       ¶118 I           begin       by    examining          the    statutory           framework
underlying the present dispute.




       4
       See WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 458-59, 555
N.W.2d 140 (Ct. App. 1996) (explaining that when there is a
causal nexus between the plaintiff's bringing a mandamus action
and "the agency's surrender of the information," the plaintiff
has prevailed in substantial part in the mandamus action).

                                                  3
                                                                     No.   2013AP1715.ssa



     ¶119 I turn first to the public records law, Wis. Stat.
§§ 19.21-.39.     Several provisions of the public records law are
significant in the instant case:
         • Wisconsin Stat. § 19.31, the declaration of policy in
           the    public    records       law,      reflects        Wisconsin's       deep
           commitment       to     open       and        transparent       government.5
           Section 19.31 provides that the policy of the public
           records law is to ensure that the public has access to
           "the    greatest        possible         information       regarding        the
           affairs     of    government         and       the     official     acts    of
           those . . . who         represent        them."        (Emphasis     added.)
           Section 19.31 further directs that the public records

           law    "shall    be   construed          in    every     instance    with     a
           presumption of complete public access, consistent with
           the conduct of governmental business."
         • Wisconsin Stat. § 19.32(2) defines the word "record"
           broadly    as    "any    material         on    which     written,    drawn,
           printed,         spoken,           visual,        or       electromagnetic
           information . . . ."
         • Wisconsin    Stat.      § 19.35(1)(b)           grants    members    of    the
           public "a right to inspect a record and to make or
           receive a copy of a record.                (Emphasis added.)
         • Wisconsin Stat. § 19.35(1)(h) declares that a request
           to inspect, copy, or receive a copy of a record "is


     5
       See State v. Beaver Dam Area Dev. Corp., 2008 WI 90, ¶2,
312 Wis. 2d 84, 752 N.W.2d 295.

                                          4
                                                             No.   2013AP1715.ssa



         deemed sufficient" for purposes of the public records
         law "if it reasonably describes the requested record
         or the information requested."              (Emphasis added.)
       • Wisconsin        Stat.    § 19.35(4)(a)        provides     that    the
         custodian      of     a   record,      upon    receiving    a   record
         request,      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 . . . and the reasons therefor."
       • Wisconsin Stat. § 19.37(1) explains that if a written
         request for disclosure of a record is submitted but
         the custodian withholds the record or delays granting

         access to the record, then a mandamus action may be
         brought to compel the record's disclosure.
       • Wisconsin Stat. § 19.37(2)(a) allows a requester to
         recover "reasonable attorney fees, damages of not less
         than     $100,      and     other     actual    costs . . . if      the
         requester prevails in whole or in substantial part" in
         a Wis. Stat. § 19.37(1) mandamus action.
    ¶120 While the instant case revolves primarily around the
public records law, one provision of the open meetings law is
also relevant.    Specifically, because the Newspaper requested a
record of the motion and vote of a governmental body, Wis. Stat.
§ 19.88(3) comes into play.          Wisconsin Stat. § 19.88(3) requires

that motions and roll call votes be recorded, stating:                      "The
motions and roll call votes of each meeting of a governmental
body shall be recorded, preserved and open to public inspection
                                       5
                                                               No.    2013AP1715.ssa



to the extent prescribed in subch. II of ch. 19 [the public
records law]."6
               T
     ¶121      he distinction and interconnection between the public
records law and the open meetings law are illustrated by State
ex   rel.      Zinngrabe   v.   School        District   of    Sevastopol,      146
Wis. 2d 629, 635, 431 N.W.2d 734 (Ct. App. 1988).                    In Zinngrabe,
the court of appeals stated that the public records law "does
not dictate which documents are to be created or direct the
government to maintain specific records."7               Instead, "[t]he duty
to maintain such records and the enforcement of such duty" are
grounded in the open meetings law.8                  The public records law
governs     the    right   to   access        records——not    the    creation    of

records.
     ¶122 With this statutory framework in mind, I turn to the
substantive issues presented.
                                         II
     ¶123 The first question presented is whether the Newspaper
submitted a valid record request.               I conclude that it did.          My


     6
       The Commission argues that Wis. Stat. § 19.88(3) does not
apply in the instant case because the Commission's vote at its
closed meeting on February 20, 2012, was not a roll call vote.
The Commission overlooks, however, that Wis. Stat. § 19.88(3)
also requires motions to be recorded. Regardless of whether the
Commission's vote was a roll call vote, it was indisputably a
vote on a motion that Wis. Stat. § 19.88(3) required to be
recorded.
     7
       State ex rel. Zinngrabe v. Sch. Dist. of Sevastopol, 146
Wis. 2d 629, 635, 431 N.W.2d 734 (Ct. App. 1988).
     8
         Id.

                                         6
                                                                 No.     2013AP1715.ssa



conclusion is supported by the language of the request itself,
by   Wis.    Stat.     § 19.35(1)(h)        (the    provision      governing        the
sufficiency of record requests), and by case law.
     ¶124 At a special meeting of the Commission held in closed
session on February 20, 2012, a commissioner moved to reconsider
candidates who had previously been eliminated from the pool of
applicants for the open police chief position.                     The motion was
made, seconded, and approved by a voice vote.
     ¶125 Later that day, the Commission issued a press release
announcing its decision.            According to the press release, the
Commission had "determined that it preferred to have a broader
pool of candidates moving forward."                 The press release did not

state which commissioners had made, seconded, or voted in favor
of the motion.
     ¶126 Shortly after the Commission issued its press release,
the Newspaper published an article written by Christine Won, one
of its reporters, regarding the Commission's decision to broaden
its applicant pool.          According to Won's article, certain members
of the community were critical of the Commission's decision and
were accusing the Commission of racial discrimination.
     ¶127 On February 22, 2012, two days after the Commission's
special meeting, Won e-mailed the Commission to request a record
of the motion and votes cast at the meeting.
     ¶128 Won    had    apparently     been        told   to    direct     her     "open

records     request"    to    the   custodians       of   the    record      she    was
seeking.     Accordingly, Won e-mailed the president and secretary
of the Commission, asking "to know" how each Commissioner voted
                                        7
                                                                 No.    2013AP1715.ssa



at the special meeting.          Won's e-mail read in relevant part as
follows:

     I was told to make my open records request directly to
     the custodians so am asking you as the president and
     secretary of the commission respectively.

     I am officially asking on the record to know the vote
     of each commissioner from the closed PFC meeting
     Monday in which they decided to reopen the police
     chief search.

     If you choose         to    deny,       please   provide     a     written
     explanation.
     ¶129 Won followed up with a second e-mail that same day.
In her second e-mail, Won specifically requested "the recorded
motions    and   votes    of    each     []    commissioner       at    the   closed
meeting . . . ."         (Emphasis       added.)        This     e-mail     read   in
relevant part as follows:

     Under statute 19.88(3) —— I am asking for the recorded
     motions and votes of each PFC commissioner at the
     closed meeting on Monday, including who made the
     motion and who seconded it.

           . . . .

     I would appreciate this information as soon as
     practicable and without delay. If you choose to deny
     this request, please provide a written explanation.
     ¶130 These    two    e-mails       constitute     the     record    request   at
issue in the instant case.
     ¶131 Won's    first       e-mail    clearly      states    the     "information
requested" by asking for "the vote of each commissioner from the
closed PFC meeting Monday in which they decided to reopen the
police chief search."          Won's second e-mail further specifies the
"requested record" by asking for "the recorded motions and votes

                                         8
                                                                         No.   2013AP1715.ssa



of   each    [    ]    commissioner      at   the        closed    meeting      on    Monday,
including who made the motion and who seconded it."                                  These e-
mails make clear what Won was seeking and constitute a valid
record request.
      ¶132 The majority opinion does not directly contradict this
conclusion.           However, it repeatedly implies that Won's e-mails
were too imprecise to constitute a valid record request.
      ¶133 The majority opinion contends that "the requests could
reasonably be perceived as seeking information, rather than a
record."9        It also observes that Won's second e-mail cited a
provision        of   the   open   meetings         law    (Wis.       Stat.   § 19.88(3))
rather than the public records law.10                            Finally, the majority

opinion      characterizes         the   Newspaper          as     a    "wordsmith       with
experience and sophistication," suggesting that record requests
submitted        by   journalists     must        meet    some    special      standard    of
clarity beyond that applied to other requesters.11
      ¶134 Any implication in the majority opinion that Won's e-
mails did not constitute a valid record request is, in my view,
plainly incorrect.          I take this position for four basic reasons.
      ¶135 First, the request meets the standard for sufficiency
set forth in Wis. Stat. § 19.35(1)(h).                           This section provides
that a record request "is deemed sufficient if it reasonably
describes the requested record or the information requested."

      9
           Majority op., ¶8.
      10
           Id.
      11
           Id., ¶¶8, 54, 83, 105.

                                              9
                                                                       No.    2013AP1715.ssa



(Emphasis        added.)              Case     law     explains      that     Wis.     Stat.
§ 19.35(1)(h) does not require a record request "to contain any
'magic words' nor do[es it] prohibit the use of any words."12                            In
the instant case, the record request reasonably described the
record and information being requested and is therefore valid.
        ¶136 Second, the majority opinion's statement that Won's e-
mails        could    reasonably         be    perceived     as    seeking     information
rather than a record is not persuasive.
        ¶137 In her first e-mail, Won explicitly characterizes her
request as an "open records request."                       In her second e-mail, Won
specifically requests "the recorded motions and votes of each []
commissioner at the closed meeting on Monday, including who made

the     motion       and    who       seconded    it."       (Emphasis       added.)      In
combination, these statements make clear that Won was not just
requesting information that was not encapsulated in a record.
She   was      requesting         a   record     containing       specific    information,
which she described in her e-mails.
        ¶138 Of course, what Won ultimately sought to obtain was
information.          But this fact does not undermine the validity of
Won's record request.
        ¶139 A distinction can be drawn between requests for public
records,       which       are    governed       by   the   public    records    law,    and
requests for information not contained in records, which are not


        12
       ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶23, 259
Wis. 2d 276, 655 N.W.2d 510 ("None of these statutes requires a
request to contain any "magic words" nor do they prohibit the
use of any words.").

                                                 10
                                                                     No.    2013AP1715.ssa



subject       to   the    public     records     law.      However,        the    majority
opinion goes too far and creates a false dichotomy between the
two, suggesting that a request may be for either records or for
information, but not for both.13
       ¶140 The words "record" and "information" are not mutually
exclusive either in common parlance or under the public records
law.        Because the pursuit of information is the driving force
behind       record      requests,    the   meanings      of   the    two        words   are
interconnected        and    overlapping       in   the    context    of     the    public
records law.
       ¶141 For example, the declaration of legislative policy set
forth at Wis. Stat. § 19.31 refers to the public's right under

the    public      records      law    to   access        "information"          regarding
governmental business, providing that it is the state's public
policy that "all persons are entitled to the greatest possible
information . . . ."14             To further that public policy, § 19.31
further provides that the public records law "shall be construed
in every instance with a presumption of complete public access,
consistent with the conduct of governmental business."15



       13
       Majority op., ¶54 ("[T]he requests could reasonably be
perceived as seeking information, rather than a record."
(Emphasis added.))
       14
            Wis. Stat. § 19.31.
       15
       See also ECO, Inc., 259 Wis. 2d 276, ¶23 ("[T]he
legislature's    well-established    public    policy    presumes
accessibility to public records and mandates that open records
laws be liberally construed to favor disclosure . . . .").

                                            11
                                                                        No.   2013AP1715.ssa



        ¶142 Likewise,         Wis.    Stat.      § 19.35(1)(h)         refers     to      both
information and records, stating that a request for a public
record is sufficient "if it reasonably describes the requested
record or the information requested."                        (Emphasis added.)               The
express language of § 19.35(1)(h) contradicts the implication in
the majority opinion that because Won's initial e-mail to the
Commission described the information she was seeking but not the
record she was seeking, she did not make a valid record request.
        ¶143 In short, the suggestion in the majority opinion that
Won's        e-mails     could    reasonably         have      been     interpreted           as
requesting information rather than a record conflicts with the
language and policy of the public records law.                          I conclude that

Won's e-mails constitute a valid record request notwithstanding
Won's ultimate goal of obtaining information.
        ¶144 Third,       the     majority        opinion's      reliance        on        Won's
reference to Wis. Stat. § 19.88(3) (a provision within the open
meetings law) to demonstrate that the request was not sufficient
is misguided.            Won's reference to § 19.88(3) does not render
Won's record request invalid.
        ¶145 As     previously         explained,       no     particular      words        are
prohibited in a record request, so no particular language or
references       necessarily       invalidate       a   record        request.16           Thus,
Won's        reference    to     § 19.88(3),       in    and     of    itself,        is     not
dispositive.        This conclusion is supported by ECO, Inc. v. City
of   Elkhorn,      2002    WI    App    302,      ¶¶25-26,     259     Wis. 2d 276,          655

        16
             Id., ¶¶25-26.

                                             12
                                                                              No.   2013AP1715.ssa



N.W.2d 510,       in     which      the   court           of    appeals       determined      that
although the request at issue referenced the federal Freedom of
Information Act (FOIA) instead of the Wisconsin public records
law, it was a valid record request under the Wisconsin public
records law.
        ¶146 More importantly, Won's reference to the open meetings
law   (that      is,    to   Wis.    Stat.      § 19.88(3))             was   not   necessarily
incorrect.        Section 19.88(3) provides that the motions and roll
call votes of a governmental body shall be recorded, preserved,
and open to public inspection pursuant to the extent prescribed
in subchapter II of Chapter 19 (the public record law).                                    In the
instant case, Won sought a record of the motion and votes of the

Commission at a special meeting held on February 20, 2012.                                     Her
reference        to     § 19.88(3)        can        be        reasonably      understood       as
indicating       that    she     believed       the       motion        and   votes    would    be
recorded and made available to her pursuant to § 19.88(3) and
the public records law.               Section 19.88(3) was, in short, highly
relevant to Won's record request, and Won's reference to it does
not invalidate her request.
        ¶147 Fourth, Won's status as a journalist for the Newspaper
does not affect the validity of her record request whatsoever.
Neither the statutes nor the case law support the notion that
different types of requesters must meet different standards of
clarity     in    order      for     their       record          requests      to     be   deemed

sufficient under the public records law.
        ¶148 In sum, for all the reasons set forth, I conclude that
Won's    e-mails       constituted        a     valid          record    request      under    the
                                                13
                                                              No.   2013AP1715.ssa



public records law.     Because Won reasonably described the record
and   information     being     requested,         the   record     request    was
sufficient.    The majority opinion's suggestions to the contrary
are misleading and unpersuasive.
                                     III
      ¶149 I   turn   to      the   second     question      presented:         In
responding to Won's record request, was the Commission obligated
to explain that the requested record did not yet exist?                          I
conclude that it was.
      ¶150 Won's e-mails requested a record that was required to
be created under Wis. Stat. § 19.88(3) but that had not yet been
produced.17    The    Commission     did     not    tell   Won    that   she   had


      17
       The Newspaper asserts not just that it had the right to
obtain the record Won requested but also that it had the right
to obtain the record promptly. According to the Newspaper, the
delayed creation of the record Won requested was one more
example of the Commission's violating both the letter and the
spirit of the public records and open meetings laws.

     As the Wisconsin Department of Justice explains in its
amicus brief, Wis. Stat. § 19.88(3) and parliamentary procedure
strongly suggest that a governmental body must record all
motions and votes at the time of the meeting or as soon
thereafter as practicable.   More specifically, the Department
interprets the statement in Wis. Stat. § 19.35(4)(a) that a
response must be provided "as soon as practicable and without
delay" as follows:

      DOJ policy is that ten working days generally is a
      reasonable time for responding to a simple request for
      a limited number of easily identifiable records.   For
      requests that are broader in scope, or that require
      location, review or redaction of many documents, a
      reasonable   time  for   responding  may   be  longer.
      However, if a response cannot be provided within ten
      working days, it is DOJ's practice to send a
                                      14
                                                        No.    2013AP1715.ssa



requested a nonexistent record.        Instead, the Commission sent
Won two e-mails stating that it was denying Won's record request
for public policy reasons.    The e-mails set forth two different
reasons for the denial, both of which the Commission has since
abandoned.
     ¶151 The Commission's first e-mail cited a case that held
that a vote in a closed governmental meeting "merely formalizes
the result reached in the deliberating process,"18 implying that
the Commission believed the commissioners' vote was not required
to be recorded.      The Commission's second e-mail cited public


     communication   indicating   that   a   response     is    being
     prepared.

Wis. Dep't of Justice, Wis. Public Records Law:       Wis. Stat.
§§ 19.31-19.39 Compliance Outline at 13 (Sept. 2012), available
at http://tinyurl.com/ljx49na (last visited June 15, 2015).

     Requiring motions and votes to be promptly recorded
furthers the policy of providing meaningful public access to
information about governmental decisions and decision-making
processes.    See Wis. Stat. §§ 19.31, 19.81.      In contrast,
construing Wis. Stat. § 19.88(3) as imposing no mandatory
timeframe for recording a governmental body's motions and votes
would render toothless the requirement that such motions and
votes be recorded and would enable governmental bodies to
deprive the public of meaningful access to important information
by indefinitely postponing a record's creation.

     With this in mind, I conclude that the record Won requested
was not timely created by the Commission.    The minutes of the
February 20, 2012, Commission meeting, at which the motion to
reopen the police chief applicant pool was made, seconded, and
approved by a voice vote were not made available for public
inspection until May 22, 2012, three months after the meeting
took place.
     18
       State ex rel. Cities Serv. Oil Co. v. Bd. of Appeals, 21
Wis. 2d 516, 539, 124 N.W.2d 809 (1963).

                                  15
                                                                            No.   2013AP1715.ssa



policy    reasons       for    denying    Won's     request,          including         concerns
about the commissioners' well-being if their votes were made
public.
        ¶152 By providing these reasons for its denial of Won's
record request, the Commission implied that the requested record
existed but was being withheld.                  The Newspaper responded to the
Commission's       apparent      withholding        of    the     record          by    filing    a
mandamus       action     to    compel     disclosure       of        the     record.           The
Commission knew, but the Newspaper did not know, that the record
did not exist.
        ¶153 Had the Commission informed Won that the record she
had requested did not exist, the Newspaper would have known it

could    not     compel    the    Commission      to      disclose          the    nonexistent
record     under     the       public     records        law.         Consequently,             the
Newspaper would not have filed a futile mandamus action under
Wis.    Stat.     § 19.37(1)(a).           It    could     instead          have       sought    to
compel    the     Commission      to     create     the     record          under      the     open
meetings law.
        ¶154 In     short,       this     litigation            was    spawned           by     the
Commission's failure to inform Won that the record she requested
did not exist.          Indeed, in this court, the Commission's primary
arguments to defeat the Newspaper's claims rest on the fact that
the     record    did     not    exist,     not     that        the    Commission             acted
reasonably or in good faith.

        ¶155 Unfortunately,         the     breakdown       in        communication            that
underpins the present case seems likely to recur in other cases.
Requests for public records are common, and some requests will
                                            16
                                                              No.   2013AP1715.ssa



inevitably be filed for nonexistent records.                  The instant case
therefore presents this court with a valuable opportunity to
provide guidance to record custodians on how best to respond to
requests for nonexistent records.               The majority opinion fails to
seize this opportunity.
     ¶156 I would adopt the position advocated by the Wisconsin
Department       of   Justice   in   its    amicus   brief:    In    the    simple
scenario in which a record custodian knows it has no responsive
record,    the    custodian     must   notify     the   requester   as     soon   as
practicable and without delay that the requested record does not
exist.19
     ¶157 My conclusion is supported by the text of the public

records law itself.


     19
        The Wisconsin Department of Justice plays a special role
with regard to the public records law.       The legislature has
accorded the Attorney General, who supervises and directs the
Department of Justice, special significance in interpreting the
public records law. The legislature has specifically authorized
the   Attorney   General  to    advise  any   person   about  the
applicability of the law.     Wis. Stat. § 19.39.    The Attorney
General has not issued a formal or informal opinion letter or
other document regarding the issue presented in the instant
case.   Rather, the Department of Justice has filed a nonparty
brief expressing its view.       The Attorney General's opinion,
advice, and brief are not binding on this court, but we may give
them persuasive effect.    See Juneau County Star-Times v. Juneau
County, 2013 WI 4, ¶36 n.18, 345 Wis. 2d 122, 824 N.W.2d 457.

      Furthermore, the Department of Justice has issued a
document entitled Wisconsin Public Records Law (Compliance
Outline) that assists government entities and the public in
interpreting and applying the public records law.        See Wis.
Dep't of Justice, Wis. Public Records Law: Wis. Stat. §§ 19.31-
19.39    Compliance   Outline   (Sept.   2012),    available   at
http://tinyurl.com/ljx49na (last visited June 15, 2015).

                                           17
                                                                               No.   2013AP1715.ssa



       ¶158 The       public        records         law     is     clear       that     a    record
custodian      need    not     create         a    record      simply     to    fill     a   record
request; the duty to create a record must be found elsewhere.20
The   public    records        law       is    silent,      however,       regarding         what   a
record      custodian       should       say      in    response    to     a    request      for    a
nonexistent         record.          I    conclude          that    the       only     reasonable
interpretation        of     the     public         records      law     is     that    a    record
custodian must notify the requester when no responsive record
exists.
       ¶159 My reasoning is as follows.
       ¶160 Under       Wis.       Stat.          § 19.35(4)(a),        "[e]ach        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)."         The
statutory      options       are,    therefore,           to     comply       with     the   record
request or to deny it and provide an explanation.                                    A refusal to
grant access to the requested record amounts to a denial of the
request.




       20
            See Zinngrabe, 146 Wis. 2d at 635.

                                                   18
                                                                No.   2013AP1715.ssa



       ¶161 In explaining a decision to deny a record request, a
record custodian must be forthright and specific.21
       ¶162 To pay heed to the legislative declaration of policy
that        the   public   is     "entitled   to   the        greatest    possible
information regarding the affairs of government,"22 and to meet
the    record       custodian's     responsibility       of     explaining     with
specificity a refusal to grant access to a record, a record
custodian faced with a request for a record that the custodian
knows (or should know) does not exist must promptly inform the
requester that the record does not exist.
       ¶163 My conclusion is supported by written guidance that
the Wisconsin Department of Justice has provided to the public

on complying with the public records law.                     The Department of
Justice has explained that "[t]he public records law does not
require authorities to create new records in order to fulfill
public records requests," but "[i]f no responsive records exist,
the authority should say so in its response."23
       21
       See Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279
N.W.2d 179 (1979) (providing that if a record custodian denies a
record request, "he must state specific public-policy reasons
for the refusal," which will "provide a basis for review in the
event of court action").     See also State ex rel. Kalal v.
Circuit Court for Dane County, 2004 WI 58, ¶¶53-57, 271
Wis. 2d 633, 681 N.W.2d 110 (discussing the common, dictionary,
plain meaning definition of the word "refusal" in a different
statute).
       22
            Wis. Stat. § 19.31.
       23
       Wis. Dep't of Justice, Wis. Public Records Law: Wis.
Stat. §§ 19.31-19.39 Compliance Outline at 1, 15, 17-18 (Sept.
2012), available at http://tinyurl.com/ljx49na (last visited
June 15, 2015).

                                        19
                                                                         No.     2013AP1715.ssa



        ¶164 Considerations of common sense and judicial efficiency
further support my conclusion.                        Notifying a requester that a
requested        record       does       not    exist    "avoids      confusion      and    the
appearance of delay, and decreases the likelihood of unnecessary
litigation."24              A record custodian who knows that a requested
record does not exist but fails to inform the requester of that
fact     invites       the     requester         to     repeat    the    follies      of    the
Newspaper in the instant case.                        A diligent requester will seek
in vain to compel disclosure of a nonexistent record by filing a
mandamus action.
        ¶165 It        is     easy       for    custodians       to     comply     with     the
obligation        to    inform       a    requester      of   the     nonexistence         of    a

record.         Record custodians are already required to respond to
valid        record    requests      under       Wis.    Stat.     § 19.35(4)(a).           Why
shouldn't record custodians faced with requests for nonexistent
records        tell     the    truth       in     response       to   such     requests         by
explaining that the records do not exist?
        ¶166 In sum, the Commission was obligated to inform Won
that the record she requested did not exist.                               The Commission
failed to fulfill that obligation, spurring the unnecessary and
protracted litigation now before this court and causing both the
Newspaper and the Commission to incur unnecessary expenses.
                                                 IV




        24
             Non-Party Brief of the Wisconsin Department of Justice,
at 12.

                                                 20
                                                                          No.       2013AP1715.ssa



        ¶167 I        turn,   finally,       to     the     question      of        whether    the
Newspaper        is     entitled     to     recover        reasonable       attorney          fees,
damages, and other actual costs incurred in the instant mandamus
action against the Commission.                    I conclude that it is not.
        ¶168 Pursuant         to    Wis.    Stat.    § 19.37(2)(a),            the     Newspaper
can recover reasonable attorney fees, damages, and other actual
costs only if it has prevailed in whole or in substantial part
in   its    mandamus          action       against        the   Commission.                Section
19.37(2)(a) provides in relevant part as follows:

        (2) Costs, fees, and damages. (a) Except as provided
        in this paragraph, 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) relating to access to a record or
        part of a record under s. 19.35 (1)(a).
        ¶169 The public records law is silent with regard to the
remedy available when a requester is induced to file a mandamus
action     under       Wis.   Stat.       § 19.37(1)(a)         by   what      the     Newspaper
characterizes as a custodian's misleading responses to a record
request.       The Newspaper asserts that it reasonably believed that
the Commission's stated reasons for denying the record request
were invalid and that the Newspaper was therefore justified in
commencing the present mandamus action.
        ¶170 According         to    the     Newspaper,         failing        to     order    the
Commission        to      reimburse        the      Newspaper        would          reward      the
Commission for its obfuscation and would allow custodians to
flout    the     procedural         requirements          and   purpose     of       the    public
records law with impunity.                   According to the Commission, the


                                              21
                                                                     No.    2013AP1715.ssa



nonexistence     of     the    record   eliminates       the    potential       for    any
liability whatsoever under the public records law.
      ¶171 The Newspaper's argument has merit.                        By declining to
grant the Newspaper its requested relief, this court runs the
risk of discouraging the Newspaper and other record requesters
from seeking to enforce their right to access public records in
the future for fear of incurring the substantial attorney fees
and   costs     the   Newspaper       now   faces.       This     result       would    be
antithetical to the purposes of the public records law.
      ¶172 Public        policy       supports    granting        the       Newspaper's
request for reimbursement of reasonable attorney fees, damages,
and other actual costs even if, as the Commission would have us

believe, the Commission simply made a mistake, with no malicious
intent,    and    did    not    attempt     to   cover    up     an    official       act.
"Practical realities dictate that very few of our citizens have
the   ability    to     be    personally     present     during       the    conduct    of
government business.           If we are to have an informed public, the
media must serve as the eyes and ears of that public."25                               The
danger is that the media will not serve in this role if the
financial risk is too great.
      ¶173 Nevertheless,          I   conclude    that    the     statutes       do    not
afford the Newspaper the relief it seeks.
      ¶174 Wisconsin          Stat.     § 19.37(2)(a)          requires       that     the
Newspaper must prevail in whole or in substantial part in its


      25
       State   ex   rel.  Newspapers,                  Inc.     v.     Showers,        135
Wis. 2d 77, 81, 398 N.W.2d 154 (1987).

                                            22
                                                               No.   2013AP1715.ssa



mandamus action against the Commission to be awarded fees and
costs.
     ¶175 Relying on case law, the court of appeals remanded the
matter to the circuit court to determine whether the Newspaper's
mandamus    action    was   a    cause    of   the   Commission's     release    of
information on March 22, 2012, such that the Newspaper prevailed
in substantial part in its mandamus action and is entitled to
reasonable attorney fees, damages, and other actual costs.26
     ¶176 The Newspaper objects to the decision of the court of
appeals, which remanded the matter.                  The Newspaper urges that
as a matter of law, it has prevailed in substantial part in its
mandamus     action    against     the    Commission.      According      to    the

Newspaper,     the    Commission     is    precluded    from   abandoning       the
reasons set forth in its initial denials of Won's record request
and from belatedly arguing that the requested record did not
exist.     The Newspaper argues that the Commission is bound by its
misleading responses and now has no remaining defense at all.
     ¶177 The essence of the Newspaper's argument is that the
Commission violated the public records law by failing to inform
Won that the record she had requested did not exist and that the
law must provide a remedy for that violation.
     ¶178 Although it tries, the Newspaper cannot successfully
tether its argument for fees, damages, and costs to the language


     26
       See WTMJ, Inc., 204 Wis. 2d at 458-59 (explaining that
when there is a causal nexus between a mandamus action and "the
agency's surrender of the information," the plaintiff has
prevailed in substantial part in the mandamus action).

                                          23
                                                                       No.      2013AP1715.ssa



of    Wis.     Stat.       § 19.37(2)(a).            Section      19.37(2)(a)         provides
plaintiffs with the right to recover reasonable attorney fees,
damages, and other actual costs only under the circumstances
specified in the statute:                   when plaintiffs prevail in whole or
in substantial part in a Wis. Stat. § 19.37(1) mandamus action.
The record in the instant case does not satisfy this statutory
requirement because the Newspaper has not demonstrated that it
prevailed      in     whole       or   in   substantial        part   in       its    mandamus
action.      Furthermore, the Newspaper does not seek a remand as
the    court     of    appeals         ordered.        Accordingly,        I     reluctantly
conclude that the Newspaper is not entitled to the reasonable
attorney fees, damages, and other actual costs that it requests

under the public records law.
       ¶179 I would be remiss if I did not comment on the majority
opinion's misguided discussion of State ex rel. Blum v. Board of
Education, 209 Wis. 2d 377, 386, 565 N.W.2d 140 (Ct. App. 1997).
In Blum, a requester asked for a copy of a student's academic
records.         The       custodian        refused     to   release       the       student's
records,     but      in    its    response         failed   to    cite    the       statutory
provision that grants students the right to keep their records
private.27       The court of appeals concluded that a refusal to
release a record for an inadequate reason "does not prevent a

       27
       Wisconsin Stat. § 19.36(1) provides that "[a]ny record
which is specifically exempted from disclosure by state or
federal law or authorized to be exempted from disclosure by
state law is exempt from disclosure under s. 19.35(1) . . . ."

     Chapter 118 of the Wisconsin Statutes, applicable in Blum,
mandates confidentiality of pupil records.

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court        from    determining       whether        a   'clear       statutory       exception'
applies" to support the refusal.28
        ¶180 Blum hinged on an express statutory exception to the
mandate of Wis. Stat. § 19.35.                    The express statutory exception
implicated the privacy rights of a third party.29                                   Blum does not
apply        in    the    instant     case.      Try        as    it   might,       the   majority
opinion cannot locate a clear statutory exception applicable to
the     present          case.        Instead,        the    majority         opinion      cobbles
together several provisions and in a conclusory fashion opines
that     "a        record's      non-existence            provides      a     clear       statutory
exception to disclosure under the public records law."30
        ¶181 In Blum, the applicability of the statutory exception

should have been obvious and well known to the requester, the
custodian, and the courts.                      In the instant case, whether the
record existed was uniquely known only to the Commission, not to
the Newspaper or the courts.                      In the instant case, unlike in
Blum, the custodian (the Commission) did not provide sufficient
notice        to    the     requester      (the       Newspaper)         to     enable      it   to
challenge the denial of its record request and did not provide a
basis for judicial review.
        ¶182 In          sum,    I   conclude    that       the    Newspaper         submitted    a
valid record request; that the Commission was obligated to, but


        28
       State ex rel. Blum v. Bd. of Educ., Sch. Dist. of Johnson
Creek, 209 Wis. 2d 377, 388, 565 N.W.2d 140 (Ct. App. 1997).
        29
             See Wis. Stat. § 118.125(1)(c), (d) & (2).
        30
             Majority op., ¶73.

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did not, respond truthfully to the Newspaper's record request by
explaining    that   the   record   did       not   exist;   and   that    on    this
record, despite the Commission's failure to promptly inform the
Newspaper that the record did not exist, the Newspaper is not
entitled as a matter of law to recover attorney fees, damages,
or other actual costs under the public records law.                     The record
before the court does not fulfill the requirements set forth at
Wis. Stat. § 19.37(2)(a) and in the case law.
     ¶183 For the reasons set forth, I write separately.
     ¶184 I    am    authorized     to    state     that     Justice    ANN     WALSH
BRADLEY joins this opinion.




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