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Court finds no privilege for closed meetings

By: dmc-admin//July 21, 2008//

Court finds no privilege for closed meetings

By: dmc-admin//July 21, 2008//

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What happens behind closed doors during a session exempt from the open meeting law doesn’t necessarily stay secret.

The Wisconsin Supreme Court on July 11 declined to adopt a “deliberative process privilege” for such meetings that would exempt the content of deliberations from discovery during a former employee’s lawsuit against the Whitnall School District.

Writing for the majority, Justice Louis B. Butler, Jr., wrote that, if closed meetings were exempt from discovery, “Nothing would prevent legislative and administrative bodies from going into closed session to escape judicial review any time they fear litigation, in effect granting themselves immunity at whim on a regular basis.”

However, the court noted that discovery requests must still seek relevant information, and protective orders may be appropriate in some cases to prevent unfettered disclosure of information outside the litigation.

Closed-Session Deliberations

The case began when Barbara Sands was terminated by the school district from her position as director of the district’s gifted and talented education program.

The board voted in an open session not to renew the contract, after deliberating in two closed sessions.

Section 19.85(1)(c) permits closed sessions for “Considering employment, promotion, compensation or performance evaluation data of any public employee…”

Sands brought suit, alleging that, because she was an “administrator” within the meaning of sec. 118.24(6), the board’s actions violated her right to a four-month notice of non-renewal.

Declined to Disclose

During the litigation, the district refused to answer interrogatories seeking the identities of each person who spoke during the deliberations, and the substance of what they said.

The circuit court directed the district to answer the questions, but the Court of Appeals reversed, in a published decision. Sands v. The Whitnall Schoool District, 2007 WI App 3, 298 Wis.2d 534, 728 N.W.2d 15.

However, the Supreme Court accepted review, and reversed the Court of Appeals over a lone dissent by Justice David T. Prosser.

The court rejected the district’s arguments that, because sec. 19.85 authorizes closed meetings exempt from the open meeting laws, the substance of those meetings are subject to an “inherent or implicit” exception to the discovery rules under sec. 905.01.

Court Findings

The court noted that the Judicial Council Committee’s Note that accompanies sec. 905.01 states that the language “inherent or implicit” is only designed to protect “work product” immunity.

The court also noted that nothing requires government bodies to go into closed sessions for certain types of deliberations, but the law merely permits them to do so.

The court concluded, “We will not infer a mandatory discovery privilege for closed session contents when the closed session statute itself speaks in permissive terms, not requiring any meeting to be closed in the first place.”

Finally, the court found that, in some cases, permitting the privilege would detrimentally impair the judicial process. Specifically, the court noted employment discrimination cases, where recognition of such a privilege would deny employees access to information relevant to the motives for termination.

Justice Prosser dissented, concluding that the majority opinion eviscerates the right of government bodies to deliberate in closed session on sensitive issues.

Prosser wrote, “Of course, governmental bodies may continue to meet lawfully behind closed doors. But what is said there no longer will be privileged to stay there. Painting with very broad strokes, the majority fashions a discovery rule that virtually destroys any privilege to keep deliberations by governmental bodies confidential when a lawsuit is filed.”

Prosser also questioned the relevance of the substance of the meetings to the issue in this case — whether Sands is an “administrator” within the meaning of sec. 118.24(1).

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