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Court looks at open records vs. attorney-client privilege

By: dmc-admin//February 18, 2004//

Court looks at open records vs. attorney-client privilege

By: dmc-admin//February 18, 2004//

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The state Supreme Court is considering whether a zoning board of appeals can assert attorney-client privilege or whether documents sent between the board chair and the municipal attorney are subject to open records laws.

During Feb. 12 oral arguments, petitioners in the case, who had been denied a zoning variance, maintained that a zoning board of appeals is required to maintain an air of openness. Therefore, the documents should be accessible giving them a better understanding of how the board made its decision.

Representatives of the town and several municipal associations hold that the documents are subject to attorney-client privilege. They fear that diminishing that privilege would have a chilling effect on communications between municipal bodies and their attorneys.

Request for Variance

According to court documents, the issue arises from a case involving GPS Inc. and the Town of St. Germain. GPS had approached the town seeking a permit to build a single-family home. However, the town required a 75-foot setback and the proposal only would have resulted in a 50-foot setback. The request was denied.

GPS then applied for a variance. A public hearing on the request was held in December 1999 and a second meeting took place in January 2000. During the January meeting the board chairman circulated an information package including a proposed order prepared by the board’s attorney. The board unanimously denied the variance request without any discussion among board members.

GPS then made a request under Section 19.31 of the Wisconsin Statutes, providing a right to review records. The town provided some of the records, but maintained that three of the documents circulated between the board chair and the municipal attorney were subject to attorney-client privilege.

GPS petitioned for a writ of mandamus to compel the Town to release the three documents. The first document was a letter from the board chair to the board’s attorney. The second was a memorandum from the board’s attorney citing variance requirements and discussing the facts of the case. The final document included drafts of proposed findings of face and conclusions of law regarding the specific requests for variances. The town maintained the documents were protected by attorney-client privilege.

The circuit court judge determined that the zoning board of appeals could not avoid public scrutiny of its deliberations and its reasoning by placing them in written communications with its attorney under the guise of attorney-client privilege.

The Town appealed, and the court of appeals reversed, finding that the zoning board had a right to expect that its communications with its attorney were confidential.

Oral Arguments

GPS brought the case to the Supreme Court, which held oral arguments last Thursday. James Friedman, of La Follette, Godfrey & Kahn in Madison, represented GPS in its appeal for release of the documents.

Three lawyers opposed release of the information in favor of upholding attorney-client privilege. William P. O’Connor, of Wheeler, Van Sickle & Anderson S.C. in Madison, represented the Town of St. Germain. William F. White, of Michael, Best & Friedrich, LLP. in Madison, represented the Administrative and Local Government Section of the State Bar. And Richard K. Nordeng, of Stafford Rosenbaum LLP, in Madison, represented the Wisconsin Counties Association and the Wisconsin Towns Association.

Friedman alleged that the zoning board of appeals was attempting to circumvent open records law by asserting attorney-client privilege. He said upholding the court of appeals decisions would establish a “template” for other municipalities to use for that purpose.

Justice N. Patrick Crooks questioned Friedman about the communications between the board chair and the board’s attorney.

“Aren’t those traditionally the kinds of things that would be covered by [Section] 905.03, by the attorney-client privilege?” Crooks asked.

“Our argument here is that both by statute and by this court’s mandate in the Hodge v. Town of Turtle Lake [180 Wis.2d 62, 508 N.W.2d 603] case, these records and these proceedings are transparent,” Friedman responded. “You can’t have secrecy. It doesn’t matter if you invite the attorney along or communicate with an attorney.”

Interest in Openness

He characterized the attorney-client privilege for zoning boards of appeals as narrow. At the same time, he said the open records law should be broadly construed in the interest of openness.

“Zoning appeals boards are quasi-judicial bodies,” Friedman sa
id. “They make critical decisions about real property, including homes, affecting real people in Wisconsin. It is absolutely essential that the public have the utmost confidence in those boards and secrecy undermines that confidence as it clearly has done in this case.”

O’Connor challenged GPS for taking select bits from the open records and zoning board laws to support its position.

“Counsel shifts back and forth regularly between those two statutes, picking and choosing provisions of each that best suit his argument,” O’Connor said. “The open records law clearly includes an exemption for common law, substantive principles which this court has recognized to include attorney-client privileged communications.”

Crooks also questioned Friedman about whether there was any limit to what would be open rather than finding protection under attorney-client privilege. Friedman noted that situations involving “pending litigation against the board” would fall under that protection. However, general zoning petitions did not meet that criteria, he said.
Later in the session, O’Connor observed that zoning petitions, like this one, could become the subject of litigation, and thus they deserved protected communications.

Certiorari Review

Justice Jon P. Wilcox questioned Friedman about why GPS chose to pursue the documents via open records rather than challenging the process by certiorari review.

“Wouldn’t [GPS] have been able to explore that under … a writ of certiorari?” Wilcox asked. “Then they would have been able to explore some of the very things you are talking about here.”

Friedman responded that GPS chose not to file for certiorari review. Rather they simply wanted to know all of the factors, which the board considered when making its decision. As a result, they pursued the issue under open records law.

Later, he noted that this was an important issue for other members of the public and the press observing such proceedings because they would not be in a position to file a motion for certiorari review and would rely on the information being subject to open records.

Supporters of the board’s position maintained that it was not right for GPS to attempt to circumvent the issue of attorney-client privilege using the open records law, when the matter would have been more appropriate for certiorari review.

“We take great offense on behalf of local government bodies to the efforts of a dissatisfied petitioner, who either negligently or intentionally did not file timely a certiorari action, coming back and ending up in the Supreme Court on a matter which is guised as open records, but is actually a disguised certiorari,” White told the court.

Meeting Questioned

O’Connor also noted that the question of how the zoning board conducted its proceedings was the proper subject for certiorari review. That response came after he was questioned by justices Patience D. Roggensack and Wilcox about the way the board conducted the meeting and issued a decision without discussion or explanation.

“There’s something that seems to be unfair about that,” Wilcox said, noting that people come to a quasi-judicial board of review expecting to hear some explanation of its decision.

O’Connor told Wilcox that the three documents still deserved protection as confidential communications. “[The question of] whether it was appropriate for the board to conduct its deliberations in that fashion was proper for cert motion,” he continued.

Roggensack asked O’Connor several times why the board wanted to keep communications between him and the board chair secret.

Several times he stated that the communications were privileged and the board had a right to control their release.

Responding to a question from the Roggensack about why the board would not want the petitioner to understand the standards it applied to its decision, O’Connor said, “The board believes it did make those standards available to people and did permit the applicant to know precisely what the grounds were for the decision they were making.” That came from the information which the board did release to GPS.

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Roggensack responded, “With all due respect, counsel, I reviewed what was in the folder and what was in there was quite different from what you did release.”

Later in the session, White observed that the open records issue in this case arose from a 1941 statute. However, the common law principle of attorney-client privilege had existed since the mid-1500s.

Lawyers supporting the board’s position observed the need to protect attorney-client privilege to allow for open communications between those decision-making groups and appropriate legal counsel. Friedman acknowledged that zoning boards of appeals should have assistance from counsel. However, he stressed the importance of allowing petitioners and the public to know what information the boards relied on to make their decisions.

Tony Anderson can be reached by email.

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