COURT OF APPEALS DECISION DATED AND RELEASED January 30, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1898
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
BOB STEIGERWALDT,
Plaintiff-Appellant-Cross
Respondent,
v.
TOWN OF KING, LINCOLN
COUNTY CLERK, HELEN
KENNEY,
Defendants-Respondents-Cross Appellants.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Lincoln County: JAMES P. JANSEN, Judge. Affirmed in part; reversed in part and
cause remanded with directions.
MYSE, J. Bob Steigerwaldt appeals
a judgment that denied his writ of mandamus for a copy of a tape-recorded
statement made by Helen Kenney, the Town of King clerk, at a town board
meeting. The judgment also awarded
Steigerwaldt damages of $200 plus costs based on the Town's violations of the
open records law. On appeal,
Steigerwaldt contends that: (1) the tape recording of Kenney's statement at the
town board meeting was a public record that he had a right to receive a copy of
pursuant to § 19.35, Stats.; (2)
the trial court erred by failing to award him reasonable attorney fees; and (3)
the trial court erred when it refused to award him punitive damages. On cross-appeal, Kenney and the Town of King
challenge the trial court's finding that the Town failed to timely furnish
public records to Steigerwaldt.
This court concludes
that: (1) sufficient evidence supports the trial court's conclusion that the
tape recording was Kenney's personal property and therefore not subject to the
open records law; (2) the trial court erred by failing to award Steigerwaldt
reasonable attorney fees; (3) the trial court did not err by refusing to award
punitive damages; and (4) the evidence supports the trial court's finding that
the Town violated the open records law by failing to timely furnish public
records to Steigerwaldt. The judgment
is therefore affirmed in part, reversed in part and remanded for a
determination of reasonable attorney fees.
This case arises from a
series of demands Steigerwaldt made for Town records. Steigerwaldt made written requests for several records including
minutes of Town meetings, the November 1990 Town poll list, and the tape
recording of Kenney's statement made at the July 11, 1994, Town meeting. Kenney never provided Steigerwaldt with the
poll list because she could not find it; she furnished the minutes of the Town
meeting but did so in an untimely fashion; and she refused to provide a copy of
the tape recording because it was her personal property and not an official
record.
Kenney testified that at
the July 11, 1994, town board meeting, she requested permission from the town
board to make a statement and have the statement tape-recorded. Kenney explained that the reason for her
request was that various inaccurate statements had been attributed to her in the
past and she wished to have an accurate record of the statement. Kenney had brought her own personal tape
recorder and tape and a citizen in the back of the room operated the machine
for her. Kenney kept the tape at home,
never stored the tape with other Town records and did not use the tape in
preparing the minutes of the Town meeting.
Following trial, the court determined that the tape recording was
Kenney's personal property and therefore not a public record subject to an open
records request. The court concluded
however that the Town violated the open records law by failing to timely
furnish Steigerwaldt with the polling list, a letter from state representative
Tom Ourada, and minutes of Town meetings.
Accordingly, the court awarded Steigerwaldt $200 in damages plus costs
under § 19.37(2)(a), Stats. However, the court did not award reasonable
attorney fees and refused to impose punitive damages, concluding that the
Town's violations were not arbitrary and capricious.
Steigerwaldt first
contends that the trial court erred by concluding that the tape recording of
Kenney's statement at the town board meeting was not a public record subject to
the open records law. This issue raises
a mixed question of law and fact because it involves a determination of the
facts that occurred and a legal conclusion as to the status of the tape based
upon those facts. This court accepts
the trial court's findings of fact unless they are clearly erroneous. Section 805.17(2), Stats. However,
application of a statute to the facts presents a question of law that this
court reviews without deference to the trial court. Wisconsin State Journal v. University of
Wisconsin-Platteville, 160 Wis.2d 31, 36, 465 N.W.2d 266, 268 (Ct. App.
1990).
Section 19.35(1)(a), Stats., states that any requestor has a
right to inspect any record, except as otherwise provided by law. Section 19.32(2), Stats., provides:
"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. "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.
"Record" does not include drafts, notes, preliminary
computations, and like materials prepared for the originator's personal use or
prepared by the originator in the name of a person for whom the originator is
working; materials which are purely the personal property of the custodian and
have no relation to his or her office ....
Under
the clear and unambiguous language of § 19.32, the tape recording is not an
official record subject to inspection if it is Kenney's personal property. The court made the following findings of
fact:
1. The tape was Kenney's personal
property.
2.
The tape was made for purely personal reasons and was not used for any Town
reason.
These
findings of fact are not clearly erroneous because there is sufficient evidence
to support each finding. Kenney
testified that the tape and tape recorder were her personal property, the
recording was made by a member of the public at the back of the room, she did
not use the tape to prepare the minutes of the meeting or for any other Town
purpose, she kept the tape at home, and she never placed the tape among Town
records.
However, Steigerwaldt
contends that the tape recording is an official record because it was of an
"official statement." This
court disagrees. Not every recording of
an official statement results in the creation of a public record. Just as official statements being made by
the President of the United States, or the Governor of the State of Wisconsin
could be tape-recorded by any person for his or her personal use and not become
an official record, so too can an official statement by a town clerk. In this case, the recording was made for
Kenney's personal reasons by a member of the public. Kenney did not use the tape in preparing the meeting's minutes
and the tape recorder and tape were her personal property. This is sufficient to support the trial
court's conclusion that the tape recording was Kenney's personal property and
used solely for personal reasons.
Therefore, this court affirms the trial court's determination that the
tape recording is not an official record subject to the open records law.
The trial court,
however, concluded that the Town failed to timely provide minutes of meetings
and the 1990 poll list to Steigerwaldt after written requests. This is a violation of the open records
requirement and is sufficient to support the damage award of $200 plus costs. On cross-appeal, the Town does not contest
the trial court's findings as to the poll list or minutes, but merely contends
that the court erred by considering a letter written by Tom Ourada to the town
board because there was no written request under § 19.37(1), Stats.
Because there were other properly filed written requests that the Town
did not honor, it is not necessary to examine the contention that the court
erred by considering the letter. The
failure to furnish the poll list and the untimely furnishing of the minutes is
a sufficient basis for the imposition of damages awarded by the court.
Next, Steigerwaldt
contends that the trial court erred by refusing to award reasonable attorney
fees. Section 19.37(2)(a), Stats., provides in part:
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). (Emphasis
added.)
By
using the word "shall," § 19.37(2)(a) requires the court to award
reasonable attorney fees if Steigerweldt prevailed in whole or substantial
part. See State ex rel.
Young v. Shaw, 165 Wis.2d 276, 292, 477 N.W.2d 340, 347 (Ct. App.
1991). Because the trial court awarded
damages under § 19.37(2)(a), it implicitly made a finding that Steigerwaldt
prevailed in subtantial part.
Therefore, the trial court was required to award Steigerwaldt reasonable
attorney fees under § 19.37(2)(a).
The Town contends that
the trial focused on whether the tape of Kenney's statement was an official
record and accordingly Steigerwaldt did not prevail in substantial part. While it is true that the contested issue
concerned the nature of the tape recording, the trial court found that the Town
violated the open records law by failing to timely furnish the minutes of
meetings and the poll list. The fact
that there were documents requested that were not timely furnished is a
sufficient basis to find that the Town violated the provisions of the open
records law and that Steigerwaldt prevailed in substantial part. The court therefore has no option but to
impose reasonable attorney fees as Steigerwaldt requested. Therefore, this court remands for a
determination of reasonable attorney fees.
However, because Steigerwaldt did not prevail on the tape recording
issue, attorney fees incurred in the appellate process should not be part of
the award.
Steigerwaldt next
contends that the trial court erred by refusing to impose punitive damages
based on its conclusion that the Town's violations were not arbitrary and
capricious. Under § 19.37(3), Stats., a court may award punitive
damages if it finds "that an authority or legal custodian under s. 19.33
has arbitrarily and capriciously denied or delayed response to a request
...." When the facts have been
established, the issue whether decisions were arbitrary and capricious presents
a question of law. Shaw,
165 Wis.2d at 294, 477 N.W.2d at 347.
However, even if the custodian acted arbitrarily and capriciously, the
award of punitive damages is left to the discretion of the trial court. See § 19.37(3), Stats.
Although the trial court
did not make any explicit findings of fact regarding this issue, this court
concludes that Steigerwaldt has not established that the Town or Kenney acted
arbitrarily and capriciously. These
parties have a long history involving Steigerwaldt's continuing demand for
various open records. He is entitled to
the records and the Town attempted on numerous occasions to accommodate his
requests. The imposition of punitive
damages is not mandated by the fact that, over a significant period of time,
minutes of meetings were not timely delivered and the 1990 poll list was not
provided because Kenney could not find the document. While Steigerwaldt contends the Town has deliberately
discriminated against him and has historically been tardy with responses to his
open records requests, there is other evidence that the Town went significantly
out of its way to accommodate Steigerwaldt's requests, including delivering
documents personally to his home, mailing documents to his home and discharging
a bill for costs that he had accumulated.
While the evidence may permit the court to have decided this issue to
the contrary, this court concludes that the evidence supports the trial court's
determination that the Town's violation of the open records law was not
arbitrary or capricious. Therefore, the
trial court properly exercised its discretion by refusing to award punitive
damages.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded with directions. No costs on appeal.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.