Journal/Sentinel, Inc. v. School Bd. of School Dist. of Shorewood

• Decision Date: 06 July 1994
• Docket Number: No. 93-3106,93-3106
• Parties: , 94 Ed. Law Rep. 478, 22 Media L. Rep. 2245 JOURNAL/SENTINEL, INC., Bruce Gill, Michael Bayer and Lawrence Sussman, Plaintiffs-Respondents, v. SCHOOL BOARD OF the SCHOOL DISTRICT OF SHOREWOOD, Amy Lewis, in her capacity as Shorewood School Board President, John L. Linehan, in his capacity as School District Acting Superintendent, von Briesen & Purtell, S.C., in its capacity as Shorewood School District Agent and Attorney, Defendants-Appellants. d ]] . Oral Argument
• Court: Wisconsin Court of Appeals

Page 165

521 N.W.2d 165

186 Wis.2d 443, 94 Ed. Law Rep. 478,

22 Media L. Rep. 2245

JOURNAL/SENTINEL, INC., Bruce Gill, Michael Bayer and Lawrence Sussman, Plaintiffs-Respondents, v. SCHOOL BOARD OF the SCHOOL DISTRICT OF SHOREWOOD, Amy Lewis in her capacity as Shorewood School Board President, John L Linehan, in his capacity as School District Acting Superintendent, von Briesen & Purtell, S.C., in its capacity as Shorewood School District Agent and Attorney Defendants-Appellants. ^d]]

No. 93-3106.

Court of Appeals of Wisconsin.

Oral Argument July 6, 1994.

Opinion Released July 19, 1994.

Opinion Filed July 19, 1994.

Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.

FINE, Judge.

This is an appeal from the trial court's grant of summary judgment in favor of the publisher of Milwaukee's two newspapers of general circulation and three of its employees, directing the Board of Directors of the School District of the Village of Shorewood, the board president, the school district's acting superintendent, and the school board's attorneys to release, under Wisconsin's public records law, §§ 19.31-19.37, STATS., a document entitled "Memorandum of Understanding," which recited the settlement terms of a lawsuit between the school board and a former superintendent of the Shorewood school district. We affirm.

I.

In November of 1991, the school district's superintendent, Lynne Moore, sued the district and members of the school board, alleging breach of contract and defamation. The case was settled and the settlement was approved by the school board at its meeting on August 20, 1992. A stipulation for "voluntary withdrawal" of Moore's action, and an order for dismissal was filed in court on August 21, 1992. Throughout the proceedings, Moore was represented by the Milwaukee law firm of Shindell and Shindell, and the district and the school-board members were represented by the Milwaukee law firm of von Briesen and Purtell.

Although the settlement agreement was ostensibly oral, it was memorialized by the "Memorandum of Understanding," access to which is sought by the publisher and its employees in this lawsuit. This "Memorandum of Understanding" is dated August 20, 1992, and was signed on behalf of the defendants in Moore's suit by Timothy Dugan, then of the von Briesen firm, at the direction of the school board. It was also signed by Anne Shindell, one of Moore's lawyers, on Moore's behalf.

An original signed copy of the "Memorandum of Understanding" is at the von Briesen firm. Although copies of the "Memorandum of Understanding" were given to each school-board member on August 20 prior to the board's discussion and approval of the settlement, the copies were retrieved from the school-board members before the meeting ended.

The "Memorandum of Understanding" is the final version of a document that, as reflected by the appellate record, went through twenty drafts by von Briesen lawyers. At least some of the drafts were discussed with the Shindell firm as part of the ongoing settlement negotiations, and were modified in accordance with those negotiations. The final typed version of the "Memorandum of Understanding" brought by the von Briesen firm to the school-board meeting on August 20 was itself modified by handwritten changes as the result of last-minute negotiations.

There is no doubt from this record but that the "Memorandum of Understanding" played a significant role in the settlement process and is the final document that reflects the settlement terms. Indeed, the then president of the school board, Amy Lewis, testified at her deposition that she relied on the "Memorandum of Understanding" in assessing and approving the settlement. Further, in announcing its oral decision, the trial court noted that the "Memorandum of Understanding" contains the following language, as read into the record by the trial court, immediately preceding the terms of the agreement: "The board and Moore have agreed for good and sufficient consideration as follows, colon," and that the "Memorandum of Understanding" concludes:

The parties to the settlement have been advised by their attorneys of all the constituent parts of the settlement and to the provisions in this memorandum. The parties reviewed this memorandum with their legal counsel, acknowledge it is an accurate and complete representation of their settlement, and is binding upon them although not personally signed. The parties have directed their attorneys as their authorized agents to execute this Memorandum of Understanding in duplicate on their behalf and have directed their attorneys to file one duplicate original in each of their respective professional offices.

One of settlement's terms was that the terms themselves would remain secret.

II.

It is the settled policy in this state that, subject to extremely narrow and well-defined exceptions, the workings of government are open to public scrutiny. The legislature has consistently reaffirmed this fundamental right in various contexts:

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employes [sic ] who represent them.

Section 19.31, STATS. (public records).

In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.

Section 19.81(1), STATS. (open meetings).

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.

Section 757.14, STATS. (court proceedings). Wisconsin's tradition of openness in government reflects the truism, expressed by Jeremy Bentham more than one-hundred and fifty years ago, that "[w]ithout publicity, all other checks are insufficient." 1 Jeremy Bentham, RATIONALE OF JUDICIAL EVIDENCE 524 (1827), quoted in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 100 S.Ct. 2814, 2823, 65 L.Ed.2d 973 (1980).

This case is governed by the public records law, §§ 19.31-19.37, STATS., and the legislatively mandated "presumption of complete public access," § 19.31, STATS.; see also Oshkosh Northwestern Co. v. Oshkosh Library Bd., 125 Wis.2d 480, 482, 373 N.W.2d 459, 461 (Ct.App.1985). Although § 19.31 recognizes that there may be circumstances where the "conduct of public business" requires that public access to the records be denied or restricted, it commands: "The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied." Ibid. ¹ The flat rule is that any person who seeks access to "any" public record "has a right to inspect" that record, unless the law otherwise provides. ² The school board appellants recognize this policy, but nevertheless contend that the "Memorandum of Understanding" is protected from disclosure. We analyze their contentions, which, because they present issues of law and the facts are not in dispute we decide de novo. See Oshkosh Northwestern, 125 Wis.2d at 485, 373 N.W.2d at 462. ³

A. Whether the "Memorandum of Understanding" is a "record" subject to public disclosure.

The public-records law defines "record" as "any material on which ... information is recorded or preserved, regardless of physical form ... which has been created or is being kept by an authority." Section 19.32(2), STATS. ⁴ An "authority" is defined by the public-records law as, inter alia, any "state or local office, elected official, agency, board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance, rule or order." Section 19.32(1), STATS. ⁵ The school board appellants contend that the "Memorandum of Understanding" is not a "record," and base this contention on two footings: that the "Memorandum of Understanding" was neither created nor is being kept by an "authority." Rather, they argue, the "Memorandum of Understanding" was drafted largely by von Briesen with input from Moore's counsel, and point out that the document is ensconced in von Briesen's files.

Although von Briesen is a private law firm, and not itself an "authority," the record is undisputed that it drafted and has maintained custody of the "Memorandum of Understanding" as attorney for the school board, which is an "authority" under the public-records law. The school board appellants' argument thus resolves to whether a public body may avoid the public access mandated by the public-records law by delegating both the record's creation and custody to an agent. Posing this question provides its answer: it may not. Indeed, § 19.36(3), STATS., specifically provides that access is to be granted to "any record produced or collected under a contract entered into by the authority ... to the same extent as if the record were maintained by the authority." Thus, in Fox v. Bock, 149 Wis.2d 403, 438 N.W.2d 589 (1989), the court assumed without discussion that a report prepared by a private consulting firm at the request of a government agency was not excluded from the definition of record because the report was neither prepared directly by the agency nor kept in its custody. ⁶ The school board appellants argue, however, that § 19.36(3) does not apply because von Briesen's contract with the board was to provide legal services and not the ...