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Supreme Court To Consider Contractor Records Provision Of Open Records Law

Chief Justice Shirley Abrahamson recently stated that “[i]f Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State. All branches of Wisconsin government have, over many years, kept a strong commitment to transparent government.”  Schill v. Wisconsin Rapids School Dist., 327 Wis.2d 572, 786 N.W.2d 177 (Wis. 2010).  The mechanisms by which Wisconsin has enabled its public to monitor the government’s affairs is its Open Records and Open Meetings Laws.  See Wis. Stats. § 19.31, et seq. and § 19.81, et seq.

Generally speaking, unless a specific exception applies, any and all governmental records are open to public inspection.  That openness applies to records that are either created a public body, or that are “being kept” by a public body.  See Wis. Stats. § 19.32(2).  The “being kept” provision of the Open Records Law results in private companies’ records of their contracts with the government being subject to public disclosure.  That would encompass, for example, a private concrete company’s contract regarding the installation of a sidewalk in a public park.

A government-private company contract may also be subject to disclosure under Wisconsin Statutes Section 19.36(3)Wisconsin Statutes Section 19.36(3) is commonly referred to as the “contractors’ records” provision of the Open Records law.  Whether or not the record is maintained by the public body, Section 19.36 states that “each authority shall make available for inspection and copying under s. 19.35(1) any record produced or collected under a contract entered into by the authority with a person other than the authority to the same extent as if the record were maintained by the authority.”

The Wisconsin Supreme Court will soon be deciding whether the “contractor records” provision requires disclosure of invoices of a law firm hired by a public agency’s insurer to defend the public agency.  In Juneau County Star Times v. Juneau County, 2010AP2313, 2011 WI App 150, a Juneau County newspaper sought the billing records generate by Crivello Carlson, a Milwaukee law firm, which had been hired to defend the Juneau County Sheriff’s Department in various matters in 2008, 2009, and 2010. 

The Court of Appeals ordered that all records, unredacted, be disclosed to the Juneau County Star Times.  First, the Court of Appeals found that the contractors records provision applied, noting that the statute did not specify who had to act to collect the records, and that in this case, the insurer acted as a representative of the government and the contracting party in collecting the billing records from the law firm.  Notably, the contract between the County and the insurer required that the County forward the insurer copies of any papers received in connection with the legal claims. 

The County argued against disclosure of the billing records because of an indirect relationship between the County, insurer and law firm.  It additionally argued against a public interest (in discovery the costs borne by the taxpayers) because there was not a “dollar-for-dollar son diction between the County funds and compensation to the law firm.” The Court of Appeals disagreed, noting that the billing records were produced because of the contract with the insurer and on the basis that the billing records dealt with “direct legal representation of the County in a matter of obvious potential public interest.” Accordingly, the Court of Appeals held that the billing records are subject to disclosure under the contractor records provision of the Open Records Law.

The final issue in the case deals with the circuit court having permitted redaction of the billing records.  Because of the Open Records Law’s strong presumption of openness, redactions must be supported by a showing that the presumption of openness is outweighed by public policy concerns.  The circuit court had concluded that the records were appropriately redacted because of attorney-client privilege. 

The Court of Appeals reviewed the unredacted billing records and stated the they included details like file numbers, federal tax identification numbers, billing numbers, photocopy dates and prices, outside printing dates and prices, the number of attorney hours (or portions of an hour) worked on a given date, attorney rates, total hours, and the identities of attorneys performing particular work.  The County had argued that because the billing information was detailed, it was therefore entitled to confidentiality, but the Court of Appeals disagreed.  The Court of Appeals instead concluded that the County had failed to establish that any of the billing records information would reveal privileged communications, and to the contrary, stated that “much of redacted information could not, under any stretch if the imagination, suggest anything of a privileged nature.”

The case concluded with the Court of Appeals remanding the case to the circuit court with an order that it disclose the unredacted billing records to the newspaper.  However, the County timely filed a petition for review with the Wisconsin Supreme Court, which accepted the case.  The parties are currently submitting briefs to the Wisconsin Supreme Court.  This will be the second occasion in which this Supreme Court has been faced with an Open Records case.

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