State Supreme Court: Newspaper has right to records (UPDATE)

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) – A Wisconsin newspaper has the right to complete copies of a county’s legal bills stemming from an investigation into a former sheriff deputy’s conduct, a divided state Supreme Court ruled Tuesday in a victory for open record advocates.

The 4-3 decision reaffirms a provision in Wisconsin’s open records law that makes government contractors’ records public. The majority rejected arguments the bills were private because the law firm was technically working for the county’s insurance company rather than the county itself.

“It’s a huge win for the open records law,” said April Rockstead Barker, an attorney representing the Wisconsin Freedom of Information Council, the Wisconsin Newspaper Association and the Wisconsin Broadcasters Association. The groups filed a brief with the Supreme Court supporting the newspaper. “Overall, it basically reaffirms the Wisconsin Supreme Court’s commitment to transparency.”

According to court documents, the case stems from the firing of Juneau County Sheriff’s Lt. Jeremy Haske for having sex with a 17-year-old girl, mishandling what Haske thought was a sexual harassment case and failure to report an employee disabling her department phone. Haske fought the termination but lost.

The county’s insurance company, Wisconsin County Mutual Insurance Corp., hired the Crivello Carlson law firm to defend the county against Haske’s lawsuit. According to the Supreme Court opinion, county representatives consulted directly with the law firm.

The Star-Times filed an open records request in 2010 seeking copies of the law firm’s bills. The insurance company, which paid all the bills, released copies to the newspaper through the county, but some information was blacked out.

The newspaper eventually sued to get the missing information. A circuit court judge found the open records law didn’t apply to the bills because the county hadn’t hired the insurance company to collect and maintain the invoices and the bills were confidential under attorney-client privilege.

The 4th District Court of Appeals, however, later concluded the bills were fair game under a provision of the open records law that states government contractor records are public. The county failed to prove the missing material qualified as privileged attorney-client information, that court added.

The Wisconsin Supreme Court agreed. Writing for the majority, Chief Justice Shirley Abrahamson said the Legislature wanted the public to have as much information as possible about government affairs and finding for the county would set up situations where government bodies could evade the open records law by subcontracting out record creation and custody.

The county, insurance company and law firm all were connected contractually, she said. Since the invoices resulted from the county’s insurance policy they’re subject to the open records law, she said.

“To characterize the invoices as solely private records … is to turn a blind eye to the realities of the relationship between the County, the insurance company and the law firm in the present case,” Abrahamson wrote.

The majority opinion stressed that nothing in the decision should be read as weakening attorney-client privilege. But Justice David Prosser warned in a stinging dissent that could very well happen.

“The majority appears to be sending a message that the confidentiality of legal invoices may be in jeopardy under the public reocrds law,” Prosser wrote. “In the future, legal invoices related to an authority may be sanitized so that they provide insurers and public entity clients with no information except the hours worked and the amount owed as well as an invitation to discuss the details orally.”

The newspaper’s lead attorney, Christa Westerberg, praised the majority ruling.

“The fact you had an insurance firm in the mix doesn’t make any difference. It’s still the public’s information,” Westerberg said. “You have a triangle rather than a straight line between two parties, (but) it doesn’t may any difference under the contractor provision.”

The county’s attorney, Bryan Kleinmaier, said an email he would be in meetings all day and wouldn’t be available to comment.

Dana Brueck, spokeswoman for the Justice Department, which backed the county in the case, said only the agency would consider whether to offer guidance to the public on the decision’s ramifications.