Wisconsin Freedom of Information Council

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Home Your Right to Know columns 2004 December: Records custodians hide behind the lawyers

December: Records custodians hide behind the lawyers

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Imagine you hear through the grapevine that your town's board has been meeting with its lawyer and some political allies about a land deal. You might be affected, so you ask about the talks, and they respond: None of your business.

Or you want to check out the zoning documents that your county board used to approve an easement on some lakeshore property, and the board members vote to keep them secret.

Or you've finally saved up and bought a piece of land up north. You ask local officials for permission to build a house, and they say no. And they refuse to explain why.

Not fair, you say: Isn't government supposed to be accountable to the people? Too bad for you -- and anyone else in Wisconsin who wants to know about official discussions and decisions involving legal issues. All of these examples are culled from the real-life experience of northern Wisconsin residents simply trying to find out what's going on in their local governments.

Increasingly, local officials are hiding behind their lawyers as a strategy to keep political enemies -- and inquisitive citizens -- out of the loop. The common thread connecting recent stonewalling over public records and meetings is an overreaching claim of "attorney-client privilege" -- the idea that communications between lawyer and client must remain confidential.

This protection makes sense in limited cases. For example, it's in the public's interest for officials and lawyers to talk privately when consulting on lawsuits, legal settlements or trial strategies, all of which could be derailed if exposed in advance.

But officials abuse this privilege when they use it merely to cloak their policymaking or cover their tracks. That appears to be the case in the town of Kinnickinnic near River Falls, where Hudson resident Elaine Ray has been thwarted by claims of attorney-client privilege in her effort to get meeting records and e-mail about a land annexation deal. Oneida County officials abused the privilege by using it to pull zoning records out of a public file requested by the Lakeland Times -- and then got the county board to cast a vote last month supporting this move.

Earlier this year, the state Supreme Court deadlocked over the town of St. Germain's refusal to explain why it rejected a zoning variance for a landowner who wanted to build a house. The town attorney sent local board members some information that they used, without a word of discussion, to unanimously deny the request. Then they claimed the documents were exempt from disclosure because of attorney-client privilege.

It's undeniable that the St. Germain board's behavior makes a mockery of open government. And Oneida County officials display shocking ignorance of the public records law by flouting it with a simple majority vote. Finally, in Ray's case, officials naively believe it's fair to share government e-mail only with their friends.

"I think this is too slick a trick," says Ray, a legal secretary who has compelling evidence that some well-connected folks already have the records she seeks. "This is a very dangerous misuse of attorney-client privilege. It's kind of a catch-all, and the public is not going to know what's going on."

Ray, who is suing town officials over their refusals, knows that these types of cases, left unchallenged, will embolden other government officials to involve lawyers in proceedings with the express purpose of shielding them from public scrutiny.

Wisconsin Attorney General Peg Lautenschlager, who launched a public integrity unit to handle such complaints, should deliver these secretive officials the rebuke they richly deserve. She must not allow abuse of attorney-client privilege to trump state laws requiring open meetings and public access to government documents.

Attorney-client confidentiality has an essential place in the law, but more and more, officials are abusing the privilege. Public officials are engaged in public business: Keeping secrets is not only out of place, but also outside the law.

Tim Kelley is the editorial page editor of the Wisconsin State Journal. Your Right to Know is a monthly column from the Wisconsin Freedom of Information Council, devoted to protecting public access to meetings and records.