City may be ordered to pay $60,000 to newspaper attorney
Nine weeks after St. Croix County Circuit Court Judge Howard Cameron ruled that accident and incident reports prepared by New Richmond Police should be open to the public and the newspaper, the records remain closed while the City of New Richmond’s insurance company disputed the hourly rate requested by the newspaper’s attorney to prosecute the case.
The disagreement over attorneys fees has delayed the formal entry of Cameron’s judgment in the newspaper’s favor, after which the city could ask the Wisconsin Court of Appeals to overturn his decision or reduce fees awarded along with the judgment.
Cases brought under Wisconsin’s Open Records Law allow plaintiffs to be awarded reasonable attorneys fees if the requester prevails.
At a hearing Tuesday, May 27, in front of Cameron, attorney Laura J. Hanson with the Minneapolis firm of Meagher & Geer, asserted that The News’ attorney should be entitled to $250 per hour — what she suggested is a more common rate for lawyers handling cases in St. Croix County.
Bob Dreps, attorney with the Madison office of Godfrey & Kahn billed at $425 per hour when he began the case in January 2013 and his rate increased to $440 per hour on Jan. 1, 2014.
At last tally, Dreps’ bill was about $60,000. Were Cameron to accept Hanson’s arguments, the city’s insurance would owe Dreps’ firm roughly $35,000.
In a filing in defense of his rate, Dreps notes that “contrary to the city’s argument, this is not a ‘standard open records case.’ This is the first case in the nation in which a record custodian claims the federal Driver Privacy Protection Act prohibits the routine application of a state public records law to law enforcement records.”
While Hanson conceded in court Tuesday that the open records dispute was “important and does have statewide implications, but I would hardly call it novel or difficult.”
Cameron disagreed. “If you’re from the newspaper (industry) in the state, it’s a very important case.
“If you take a look at the (departments) that are redacting, they’re small places like Washburn, Mount Horeb, Green Lake County, Poynette. The direct impact (of the ruling) makes it important,” Cameron said.
He said Wisconsin has a long history of openness and takes pride in its open records law. When that openness is challenged, some media believe it’s important and they’re willing to litigate it.
In written arguments submitted before Tuesday’s hearing, Hanson asserted the $440 hourly rate “far exceeds the market rate in western Wisconsin” and the “contingent nature of the fee arrangement supports reducing the rate.” She also attacked Dreps’ assertion that the contingent-fee agreement his firm had with the newspaper supports a full recovery of the hourly rate — the same rate he charges any client for his work.
Cameron said he’s never received more publicity for anything he’s ever done than he has following release of his ruling favoring the release of police reports — a fact he conceded may have to do with that news media itself was involved with the case.
But if Dreps’ firm hadn’t been willing to take the case on contingency, what newspaper besides perhaps the Milwaukee Journal-Sentinel or the Wisconsin State Journal could have afforded to challenge a records case like this, the judge asked. Cameron opined that community newspapers don’t have the resources and increasingly, neither do large daily newspapers like the Minneapolis Star-Tribune, which itself just emerged from bankruptcy protection.
Cameron disputed Hanson’s claim that $250 per hour was the prevailing rate in St. Croix County. If so, he said, they’d be the lowest among any attorney doing general work.
The judge noted that while his own father was an attorney, he regularly preached to his kids the importance of “hiring good people to do work because he didn’t want to have more problems down the line”.
Among Dreps’ documentation to support his rate was an affidavit from a client who called Dreps “one of two go-to people in the state for this type of litigation.”
Cameron implied to Hanson that it was on the advice of the insurance companies that departments like New Richmond Police began redacting records in the first place.
That is not correct, Hanson retorted, saying that her client — the city’s insurer — was only contacted after the newspaper filed suit.
Cameron now takes the case under advisement and set 1 p.m., Monday, June 16, as the time he’ll announce his decision in the matter.
Meanwhile, New Richmond city officials have yet to say whether they’ll appeal Cameron’s March 20 decision that New Richmond police were incorrect in redacting names, addresses, ages of subjects involved in matters that prompt the creation of official reports detailing accidents, burglaries, acts of vandalism and more.
Police Chief Mark Samelstad asserted that because information in reports often came from the motor vehicle records database maintained by the Department of Transportation, making those details public could represent a violation of the DPPA and expose the city to lawsuits from private citizens.
The newspaper’s lawsuit named the city as a defendant because it is responsible for the actions of the police department. The suit asked that the department reverse its policy and pay attorney fees in the case. The newspaper did not seek any damages.
At last count, about 80 law enforcement jurisdictions across Wisconsin had followed New Richmond’s lead in refusing to release accident and incident report details. Meanwhile many others — including Somerset Police, the St. Croix County Sheriff’s Department and River Falls Police, continue to allow public access to reports.