Recent Wisconsin Supreme Court rulings present a mixed bag that still lends some support to open government advocates by providing new guidance to citizens and government bodies.
First, the open government wins:
-- State of Wisconsin v. Beaver Dam Area Development Corporation clarified when allegedly private entities are subject to the public records and open meetings laws.
The case was brought by the Wisconsin Attorney General’s Office against the Beaver Dam Area Development Corporation. The court ruled that the corporation was subject to the public records and open meetings laws. Justices noted that the corporation was entirely city-funded, performs a public function (economic development), appears in its presentation to the public to be part of the city, and is subject to a degree of city control, including access to its records.
While the court emphasized the importance of economic development, it also stated: "We cannot countenance a government body circumventing the legislative directive for an open and transparent government by paying an entity to perform a governmental function."
Full disclosure: I filed a brief arguing that the corporation was subject to these laws on behalf of a Beaver Dam citizens’ group called Citizens for Open Government, the Wisconsin Freedom of Information Council, the Wisconsin Newspaper Association, and the Wisconsin Broadcasters Association.
-- Sands v. Whitnall School District determined that exemptions to the open meetings law cannot overrule a person’s ability to obtain information from an opposing party in a lawsuit. In this case, a fired school district employee sued the district, alleging wrongful termination. The school board discussed Sands’ termination in closed meetings.
No one disputed that the discussions were properly held in closed session; the question is whether Sands could later obtain the content of those discussions through her lawsuit. The Supreme Court said the information was inappropriately withheld from Sands because the open meetings law’s limited exemptions do not create a “deliberative process” privilege as the school district had contended.
The court concluded: “Considering the general presumptions of openness and access underlying both our discovery and open meetings statutes, there is no compelling justification for denying a litigant's rights to discovery regarding the substance of closed session discussions pertaining to that litigant.”
Another case created mixed results for openness but provided some helpful clarifications of the law. In WIREdata, Inc. v. Village of Sussex, the records requester was a company that wanted to access searchable electronic versions of property assessment databases. The Supreme Court unanimously ruled that the village adequately responded to the request by providing a PDF copy of the database, rather than the searchable version of the database the requesting company originally wanted.
In the process, however, the court clarified that a governmental body cannot pawn off a records request to an independent contractor — in this case, the contractor who developed the database — and thereby avoid liability under the open records law. Rather, the request must be made to the governmental body itself, who is then responsible for getting the documents from the contractor and delivering them to the requestor.
-- Finally, the only clear loss for open government was Watton v. Hegerty. This case concerned an open records request to the Milwaukee Police Department for two signed statements of emergency detention. The statements were created by police officers in the course of involuntarily committing an individual to a state mental health treatment facility. The individual was later released and committed a homicide.
The court ruled the statements were treatment records that should be kept confidential. To reach this conclusion, it determined that the documents were created by a police officer in the course of providing treatment to individuals with mental illness.
A number of other open government cases are now before the Wisconsin Court of Appeals. Stay tuned for other developments in these cases that will affect your right to know.
Christa O. Westerberg is an attorney and shareholder at Garvey McNeil & McGillivray S.C. in Madison. Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government.