Vol. 82, No. 10, October 2009
You are a member of a governmental body such as a school board. An employment matter involving very sensitive issues and information has come before you for discussion, evaluation, and decision, including possible termination of an employee. The statutes specifically allow governmental bodies to convene in closed session to discuss the matter privately, presumably so that each member of the body can freely speak his or her opinions, discuss the facts, ask questions, and engage in a frank give-and-take to arrive at a reasoned resolution. You go into closed session with an expectation that because the Wisconsin Legislature has authorized these discussions to occur in private, what you and others say is confidential and will not be revealed to the press, the public, or the person whose situation you are discussing.
Not so fast.
In a decision characterized by Wisconsin Court of Appeals Judge Charles P. Dykman in his annual review of selected civil cases as “one of the ten most important cases released in 2008,”1 the Wisconsin Supreme Court in Sands v. Whitnall School District2 held that there is no evidentiary privilege for deliberations in closed sessions conducted by governmental entities. Therefore, a civil litigant can use discovery to learn the content of discussions that occurred in closed session even though the legislature has decided those discussions can be conducted in secret, shielded from public view. The supreme court held that there is no discovery privilege for such discussions either by way of statute or under a deliberative process privilege, which it declined to create.
The Sands Situation
In 1998, the Whitnall School District (the district) hired Dr. Barbara Sands to run the district’s Gifted and Talented Education Program. Her duties included monitoring and instructing classroom teachers on units of instruction for students in the program, developing curriculum, developing and administering methods of identifying the student participants, planning and administering the program’s budget, and acting as substitute administrator-principal. The district school board met in closed session on two occasions to address Sands’s employment. After the closed sessions, the board voted not to renew her contract. Sands sued. Sands’s attorneys served document requests and interrogatories on the
district. The interrogatories sought the identity of each person who spoke and the substance of what each person said about renewing Sands’s contract during the closed sessions. The district refused to answer the interrogatories, asserting that the information was privileged under Wis. Stat. section 19.85, the law allowing governmental entities to convene in closed session, and also pursuant to a deliberative process privilege. Sands filed a motion to compel. The circuit court ordered the district to provide the information requested in the interrogatories. The district appealed. The court of appeals accepted an interlocutory appeal and reversed the circuit court.3 Sands petitioned the Wisconsin Supreme Court for review. The supreme court granted review and reversed the court of appeals.
The Clash of Competing Interests
The case presented a classic clash of competing interests. On one hand, a litigant is entitled to broad discovery of facts and assertions made by an opposing party, especially when those facts and assertions involve a specific decision adversely affecting that litigant’s rights. On the other hand, there is both a public and a private interest in allowing full, open, frank, and even, at times, heated discussion, during which all opinions can be stated fully without fear of penalty, embarrassment, or criticism, thus promoting candor and completeness to achieve a rational result and without having the “dirty laundry” of the subject aired in public.
This clash of interests can be encapsulated into two succinct positions. From the governmental body side: “How do you expect us to have a full and candid discussion of serious and sensitive issues necessary to come to a reasoned conclusion, when every word we say will potentially be held up to cross-examination and possibly even ridicule? Why did the legislature provide for a closed session in the first place if anything said in that session is wide open to disclosure?” From the other side: “How else can we discover what a governmental body did and why they did it without being able to question under oath the persons who actually made the decision? After all, our interests were directly and adversely affected by what the governmental body did through its members and, therefore, we have a right to inquire who said what and why.”4
Even though Sands has been in place for some time now, these competing interests remain at odds. According to Oshkosh attorney Alyson K. Zierdt: “My office represents many public sector clients for whom this decision and its implications are big, and I don’t see the issues it has raised as being anywhere close to resolution.” In his annual review, Judge Dykman noted: “Though the use of Sands will be limited to cases which involve governmental bodies, there is significant litigation concerning the action of those bodies.”
The Majority Decision
Former Justice Louis B. Butler Jr. authored the lengthy majority opinion in Sands on behalf of six justices. The court of appeals had concluded that the language in Wis. Stat. section 19.85, the statute allowing the board to hold its closed session,5 indicated that the legislature intended to protect the substance of the closed session from discovery as privileged under the language of Wis. Stat. section 905.01 establishing privileges “inherent or implicit in statute [here Wis. Stat. § 19.85] or in rules adopted by the supreme court….” 6
Reversing the court of appeals, the supreme court agreed with Sands that Wis. Stat. chapter 905 contains no implicit privilege shielding the discussions and therefore exempting them from discovery nor is there any deliberative process privilege, as claimed by the district. Despite the district’s attempt to frame the case as an open meetings case, the majority found it was instead ultimately a discovery case and therefore, the discovery statutes would govern.7 The supreme court noted that under the discovery statutes the scope of discovery is broad: parties in a lawsuit are to be given access to relevant information, including information that may not be admissible at trial, so long as the information is not privileged. The court held that simply because the information sought was conveyed in a closed session does not render the information privileged against discovery requests.8
The supreme court emphasized the broad nature of a party’s right to discovery, including the right to examine all persons possessing relevant information or information that will lead to discovery of relevant information, all in pursuit of the truth through thorough investigation.9 The court warned:
“We must, therefore, tread carefully in the face of potential threats to a litigant’s pursuit of truth and justice. Such threats to a litigant’s access to truth and justice may come in the form of overly broad claims of evidentiary privilege….
“In respect of these fundamental principles which lie at the core of discovery rights and are the foundation of our adversary system, we have held that ‘[p]rivileges are the exception, not the rule.’”10
With this premise that discovery is broad and privileges are the exception, the supreme court then analyzed the language in chapter 905 regarding privileges. The court concluded that nothing in chapter 905 creates an explicit privilege applicable to the situation (nor did the district so argue). The court noted that the district’s arguments focused on the provisions of Wis. Stat. section 19.85(1), which the district claimed contained an implicit privilege authorized by the “inherent or implicit” language of Wis. Stat. section 905.01.11
The majority then analyzed the meaning of the phrase inherent or implicit in section 905.01. Citing a 1974 Judicial Council Committee Note to the statute, the supreme court held that the language in section 905.01 was narrow in scope and was included by the court (when it promulgated the statute)12 solely to preserve a particular work-product privilege recognized at the time, “while leaving other privileges to be provided for more expressly in other statutory provisions.”13 To buttress its conclusion, the court also cited and quoted the dissenting opinion in Burnett v. Alt,14 discussing Wis. Stat. section 905.01 and the Judicial Council Note: “new privileges are not to be created except by legislation or Supreme Court rule. Wis. Stat. § 905.01 is not a license for courts to create, modify, or expand privileges; that task must be accomplished by legislative or rulemaking action.”15
The supreme court went on to state that even when a statute contains confidentiality requirements, an evidentiary privilege is not necessarily created, because confidential and legal privilege are very different concepts. The court cited as an example trade secrets, which are deemed confidential under the statutes but may, nonetheless, be the subject of discovery in a lawsuit, with protective orders available to protect confidentiality.16
The supreme court also cited the strong presumption in favor of openness and access found in the Wisconsin Open Meetings Law, indicating it would be incongruous to not allow discovery of those meetings as compared to private bodies’ meetings, which are not open to the public but are still generally subject to litigation discovery requests.17 The court also noted that under the law, closed meetings are not required but, instead, are permissible.18
In reaching its decision, the supreme court cited a Nebraska Supreme Court decision19 as particularly compelling. Interpreting its state’s law, the Nebraska Supreme Court held that closed-meeting sessions did not create a discovery privilege. The Wisconsin Supreme Court embraced the strong policy reasons advanced by the Nebraska Supreme Court, including that if communications were privileged solely because they occurred during a closed session, “a private litigant would be left without the ability to challenge the validity of the public body’s actions during a closed session. To determine whether a public body, in a closed session, has acted outside of its authority, a private litigant must have access to those communications by means of a legitimate discovery request.”20
Citing the policy underlying the Open Meetings Law and the policy of according broadest discovery rights to litigants to discover what happened during those open meetings, the supreme court also emphasized that the Open Meetings Law itself does not describe the contents of the closed meetings as either secret or exempt from discovery.21 However, the court reemphasized that, “[m]ost importantly,” the “rights of private litigants to engage in legitimate discovery requests” was critical to the functioning of the adversary system:
“While certain government bodies may be entitled to have some meetings closed to the general public, we do not view such permissive limitations upon the physical presence of the general public at meetings to justify automatically mandating the denial of discovery to litigants whose rights such meetings may directly affect.”22
Donald Leo Bach, U.W. 1974, is a shareholder in DeWitt Ross & Stevens S.C., Madison, where he practices litigation, environmental, consumer, and administrative law.
The supreme court then proceeded to discuss and dismiss the district’s alternate claim that the deliberative process privilege prohibits the compelled disclosure of the board’s discussion.23 After discussing the privilege, which derives primarily from federal Freedom of Information Act24 law, the court noted that Wisconsin has not recognized the deliberative process privilege and that Wis. Stat. section 905.01 precludes the extension of such a privilege on a case-by-case basis and again declared that privileges not originating in the Wisconsin Constitution must be adopted by statute or court rule.25 The court added the gloss that even if it had the authority to create new privileges via case law, the deliberative process privilege recognized by the federal courts would not be an implicit privilege applicable to discovery requests in Wisconsin because Wisconsin law reflects a strong policy of transparency and access, particularly in the context of discovery requests.26
To illustrate the potential dangers of the district’s position, the supreme court pointed out that, in employment discrimination cases, government employees would lack the ability to prove that the employer’s proffered reasons for their treatment were pretextual – a necessary element of many federal and state discrimination claims – if they were denied access to closed discussions about their termination.27 Moreover, the majority indicated there are protections within the discovery statutes available to the governmental body when discovery of closed-session discussions is sought, including protective orders under Wis. Stat. section 804.01(3) to prevent annoying, embarrassing, oppressive, unduly burdensome, or unduly expensive discovery requests. The court also noted that pursuant to Wis. Stat. section 804.01(2)(a), objections may be made that the discovery request is not relevant to the subject matter involved in the pending action.28 In addition, the circuit court has the power to seal the record or to conduct in-camera proceedings to ensure that the information requested is necessary to the litigant and not beyond the scope of discovery.29 The court also noted that other privileges remain applicable.30
The Spirited Dissent
Justice David Prosser, the sole dissenter, began his opinion with a warning:
“This seemingly small case … seriously threatens the right of governmental bodies to deliberate in closed session before making a public decision, even though the Wisconsin Statutes explicitly authorize governmental bodies to meet in closed session…. 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.”31
In his dissent, almost as lengthy as the majority opinion, Justice Prosser reviewed the factual and procedural history of the underlying case, explored the “sweeping” implications of the majority’s opinion, discussed the constitutional and common law background on privileges, and reviewed statutory interpretation principles as well as the deliberate process privilege. He also maintained that when the legislature enacted section 19.85(1)(c), it intended to create a deliberative process privilege to foster candid deliberations in closed sessions.32
Justice Prosser criticized the majority for incorrectly narrowing the scope of Wis. Stat. section 905.01 based on an improper reading of the 1974 Judicial Council Committee Note. In Justice Prosser’s view, because the plain meaning of Wis. Stat. section 905.01 is clear, the majority should not have made any inquiry into the Note.33 In any event, Justice Prosser argued that the majority read more into the Note than what was there or intended, and that the Note “should not be permitted to override the meaning of clear text,” which, he maintained, is supported by supreme court precedent, including Alt and its progeny.34
Justice Prosser concluded with another warning:
“This litigation will lead to an unwarranted disclosure of confidential pre-decisional deliberations, and have a chilling effect on such deliberations.
“Contrary to the majority, I conclude that there is a qualified testimonial privilege inherent in Wis. Stat. § 19.85(1) that allows governmental bodies and their employees to withhold the content of pre-decisional, deliberative discussions that take place during the body’s properly held closed sessions.”35
The Majority’s Rebuke of the Dissent
The majority opinion contains a stinging (and rather uncharacteristic) rebuke of the dissent:
“It is … quite disingenuous for the dissent to accuse the majority of sweeping too broadly and violating the separation of powers doctrine. Rather, it is the dissent that would have this court engage in judicial activism by creating a new privilege never before recognized by courts in this state and unauthorized by the legislature. … The dissent admonishes this court with the reminder that this court must ‘remember the limitations on its rule-making powers’ … but such limitations are precisely the basis of our decision today. This reminder is one that the dissent itself should heed, rather than engaging in Orwellian ‘doublethink.’”36
Potential impacts of the Sands decision are not hard to imagine. They likely include: 1) counsel to governmental bodies advising members (although not quite giving them Miranda warnings) to be extremely careful in their comments because what they say can and will be used against them; 2) members self-censoring and restricting their comments, questions, inquiries, and opinions on sensitive and often difficult matters, such as employee conduct or discipline, for fear that they will be questioned ad infinitum about them; 3) counsel advising that an attorney be present during the entirety of every closed session so that it may be claimed that the attorney-client privilege applies to the whole of the discussion during that session (whatever the merits of such a broad assertion of such privilege), resulting in additional costs of doing governmental business; 4) more euphemisms and talking around the real issues; 5) a reluctance to serve on public bodies;37 6) the making of objections based on lack of relevance or on other claims of privilege; 7) the filing of motions for protective orders in every case, seeking whatever protection can be obtained from the circuit court; 8) increased requests for in-camera inspections; and 9) potentially more carefully organized and pre-prepared sessions, relying more on summaries, facts, and recommendations issued by staff or attorneys.
Implications Regarding Public Records Law
Does the Sands decision implicate the Wisconsin Public Records Law or vice versa?38 Under the statutes and case law, public records39 may be withheld from inspection and copying if they fall under certain statutory or common law exceptions.40 In Sands, the district had turned over requested documents; the case solely involved interrogatories as to what board members had said about renewing the contract.41 Accordingly, whether a discovery privilege attaches to records allowed to be withheld from disclosure under the public records law was not at issue.
As previously indicated, the majority relied heavily on a 1974 Judicial Council Committee Note in limiting the meaning of the phrase “inherent or implicit in statute” in Wis. Stat. section 905.01. That Note also contains a section addressing public records:
“The right of a member of the public to inspect public documents [through the public records law] remains subject to the procedures outlined in State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W. 2d 470 (1965), modified and rehearing denied 28 Wis. 2d 672, 139 N.W.2d 241 (1965), and Beckon v. Emery, 36 Wis. 2d 570, 153 N.W.2d 501 (1967).”42
Commenting on this quoted language, the majority stated:
“This Judicial Council note reveals that the ‘inherent or implicit’ language in the Rule [905.01] is quite narrow in scope and was included by this court to preserve a particular work product privilege already recognized at the time … while leaving other privileges to be provided for more expressly in other statutory provisions (aside from privileges against Wis. Stat. § 19.35 open records requests that are still governed by a common law balancing test).”43
In Youmans and Beckon, the Wisconsin Supreme Court had held, based on common law, that a records custodian may withhold a public record from inspection and copying if the custodian determines that the harm done to the public interest by permitting inspection outweighs the right of a member of the public to access the record and if the custodian states a specific sufficient reason for denying access.
Has the supreme court in Sands done what it said it could not do – create an evidentiary privilege for records such as memoranda, email, summaries, chronologies and the like – without the passage of a rule or legislation? If not, has the court at least opened the door to such a proposition?
Conversely, was the supreme court’s use of the word “privileges” a judicial slip of the tongue? It may well have been. In another part of Sands, the court strongly suggested in a footnote that documents not falling within a specific privilege would be discoverable:
“We note that our holding is also consistent with the approach taken in open records cases in this state. In Wisconsin State Journal v. University of Wisconsin-Platteville, 160 Wis. 2d 31, 38, 465 N.W.2d 266 (Ct. App. 1990), the court of appeals held that ‘[i]t does not follow that, simply because meetings were properly closed under sec. 19.85(1)(f), Stats., documents compiled in conjunction with those meetings are exempt from disclosure under sec. 19.35(1).’ In Zellner v. Cedarburg School District, 2007 WI 53, ¶ 48, 300 Wis. 2d 290, 731 N.W.2d 240, this court similarly held that although a settlement meeting between Zellner and the District in that case ‘was closed to the public, it does not follow that records which were compiled in conjunction with that meeting are automatically exempt from release under the Open Records Law.’ In the present case, Sands urges us similarly to ‘refuse to create a new privilege for what is said in closed session meetings, just as it has refused to privilege what is written for closed sessions.’ We agree that the same principle applies: it does not follow that simply because meetings are closed under Wis. Stat. § 19.85, the contents of such meetings are exempt from disclosure in response to discovery requests, just as they are not automatically exempt from open records requests. The clear policy of discovery statutes, open records laws, and open meetings laws alike is transparency and access.”44
As for the Public Records Law itself, a creative records custodian might cite the principles, policies, and purposes of the deliberate process privilege outlined at length in the Sands dissent, to support withholding records under the Youmans balancing test and potentially create a whole new exemption in Wisconsin public records law.
Crafting a Compromise
Can a remedy be fashioned so the competing interests at stake in Sands can be met without completely sacrificing one for the other?
Hints to the answer may lie in Sands itself. The majority opinion cites the availability of protective orders and in-camera inspections. However, protective orders require a motion (likely accompanied by affidavits), briefing, a hearing, and a decision, all of which can cause delay and expense. Moreover, if a protective order is denied in whole or part, expenses incurred litigating the motion may be awarded.45 Finally, protective orders are discretionary with the circuit court.46 In-camera proceedings can be unwieldy, and if the materials reviewed are deemed not discoverable, and trial is to the court, the court’s prior review of the documents puts the judge in the position of having to forget what he or she has read.
Perhaps one solution is to mandate, by separate statute or rule, that some of the protective order-type provisions in Wis. Stat. section 804.01(3) automatically apply if discovery is sought of discussions occurring during a properly closed session of a governmental body. This could include that depositions be conducted with no one present except the parties and their counsel and experts, that discovery of discussions in closed session be sealed until further order of the court, and that special provisions be made at trial protecting the information. This enables both sides to know the rules up front: public members know that deliberations have a certain amount of guaranteed protection built in, and litigants still get their discovery.
Provisions regarding a showing of particularized need before conducting discovery of closed sessions also should be on the table for consideration. The special-need concept already exists in Wisconsin’s discovery statutes, which provide that experts retained solely for nontestimonial trial preparation purposes can be deposed “only upon motion showing that exceptional circumstances exist under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.”47 It then becomes a matter of timing; a party must first avail itself of discovery of facts outside of the closed session; if that does not satisfy the party’s needs, the party can likely justifiably contend that discovery of the closed session itself has become necessary.
Regardless of what measures are adopted to protect the competing interests at stake, one thing is certain: the public and private interests involved are too important to allow the status quo to continue.48