Wis. Prof'l Police Ass'n v. Marquette Cnty.

• Decision Date: 18 June 2015
• Docket Number: No. 2014AP2634.,2014AP2634.
• Citation: 364 Wis.2d 528,868 N.W.2d 199 (Table)
• Parties: WISCONSIN PROFESSIONAL POLICE ASSOCIATION, Petitioner–Respondent, v. MARQUETTE COUNTY, Respondent–Appellant.
• Court: Wisconsin Court of Appeals

364 Wis.2d 528

868 N.W.2d 199 (Table)

WISCONSIN PROFESSIONAL POLICE ASSOCIATION, Petitioner–Respondent

v.MARQUETTE COUNTY, Respondent–Appellant.

No. 2014AP2634.

Court of Appeals of Wisconsin.

June 18, 2015.

Opinion

¶ 1 PER CURIAM.

Marquette County appeals a circuit court order granting the petition for writ of mandamus filed by the Wisconsin Professional Police Association. The circuit court order compels the County to produce unredacted copies of its attorney billing records, except for a small number of redactions requested by the County and accepted by the circuit court, pursuant to the Police Association's public records request.¹ The County argues that the circuit court erred in rejecting the remaining requested redactions, because the redacted portions contain privileged attorney-client communication and/or protected attorney work product, and are therefore exempt from the open records request.²

¶ 2 Upon independent review of the record, we conclude that the County fails to point to evidence sufficient to survive summary judgment on the question whether the material in its requested redactions is privileged attorney-client communication or protected attorney work product. Therefore, we affirm.

BACKGROUND

¶ 3 According to the County, after the enactment of 2011 Wis. Act 10, the County retained the law firm Phillips Borowski to “assist with Act 10 related issues including litigation with labor unions such as [the Police Association].” The County also retained another law firm, Davis & Kuelthau, to handle certain litigation matters relating to Act 10.

¶ 4 In January 2013, the Police Association filed a public records request with the County, seeking billing invoices from the two law firms from June 24, 2011 through January 25, 2013. In response, the County provided the Police Association with ninety-six pages of billing invoices that contained over 300 redactions.³ The County enclosed a letter and index indicating each dated billing entry that contained a redaction and the reasons for the redaction. The stated reasons consisted solely of two repeated blocks of boilerplate language, one asserting the disclosure of an attorney-client confidential communication and the other asserting the disclosure of attorney work product.

¶ 5 In May 2013, the Police Association filed a petition for writ of mandamus, asking the court to order the County to produce copies of the unredacted billing invoices. Both parties filed motions for summary judgment. The circuit court conducted an in camera review of the redacted and unredacted versions of the billing invoices along with the County's index of reasons for the redactions, and concluded that a small number of redactions were proper with respect to the billing statements from Phillips Borowski and that no redactions were proper with respect to the billing statements from Davis & Kuelthau. Accordingly, the circuit court granted the Police Association's petition for writ of mandamus, compelling the County to provide the Police Association with unredacted copies of the billing invoices with the exception of the accepted redactions identified in the circuit court order.

DISCUSSION

¶ 6 The County argues that the circuit court erred in not accepting the requested redactions where the redacted portions are: (1) “detailed narratives ... that describe the nature of the work performed [and/or] reveal the subject matter of communications [between the County and its counsel]” and therefore “protected by the attorney-client privilege”; and/or (2) protected attorney work product. The Police Association, without knowing the contents of the redactions, assumes that the redactions rejected by the circuit court do not contain any material that is privileged attorney-client communication or protected attorney work product because the general “purpose of an invoice is to document who did what, when, and for what amount of time as the basis for the amount charged, rather than to communicate confidential information.”

¶ 7 Thus, the only issue on appeal is whether any of the requested redactions should have been accepted on the basis that the redacted material is privileged attorney-client communication or protected attorney work product. We begin with the applicable standard of review, followed by a brief examination of the Wisconsin Public Records Law. We then review the law relating to each of the two exceptions to disclosure pertinent here—the attorney-client privilege and the work product doctrine—and, as to each of these categories individually, apply that law to the billing invoices redactions requested by the County. We conclude that the County fails to point to evidence sufficient to survive summary judgment on the question whether the material in its requested redactions is privileged attorney-client communication or protected attorney work product.

A. Standard of Review

¶ 8 “The proper interpretation of a statute and case law raises questions of law that we review de novo.” State v. Starks, 2013 WI 69, ¶ 28, 349 Wis.2d 274, 833 N.W.2d 146. Whether the circuit court erred in applying the “[Public] Records Law to undisputed facts is a question of law that we review de novo, benefiting from the analyses of the circuit court.” Hempel v. City of Baraboo, 2005 WI 120, ¶ 21, 284 Wis.2d 162, 699 N.W.2d 551.

¶ 9 “We review a grant of summary judgment independently, using the same methodology as the circuit court.” Barrows v. American Family Ins. Co., 2014 WI App 11, ¶ 5, 352 Wis.2d 436, 842 N.W.2d 508 (WI App 2013). “Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.; see also Wis. Stat. § 802.08(2).

B. Wisconsin Public Records Law

¶ 10 Under the Wisconsin Public Records Law, “any requester has a right to inspect any record” except otherwise provided by law, and “[e]ach authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority's determination to deny the request in whole or in part and the reasons therefor.” Wis. Stat . § 19.35(1), (4)(a).

¶ 11 “The Wisconsin [Public] Records Law reflects the common law principles favoring access to public records that have long been recognized in Wisconsin.” Mayfair Chrysler–Plymouth, Inc. v. Baldarotta, 162 Wis.2d 142, 155, 469 N.W.2d 638 (1991). This strong policy in favor of public access is expressed in Wis. Stat. § 19.31, which reads:

Declaration of policy. ... [I]t 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 employees who represent them.... To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

¶ 12 However, the “strong presumption of public access may give way to statutory or specified common law exceptions, or, if there is an overriding public interest in keeping the record confidential.” Portage Daily Register v. Columbia Cnty. Sheriff's Dept., 2008 WI App 30, ¶ 11, 308 Wis.2d 357, 746 N.W.2d 525.

¶ 13 “When addressing [a public] records request, a records custodian must make the initial decisions on whether a requested item is a ‘record’ and whether any statutory or common law exceptions to disclosure apply.”⁴ John K. MacIver Inst. for Public Policy, Inc. v. Erpenbach, 2014 WI App 49, ¶ 13, 354 Wis.2d 61, 848 N.W.2d 862. If the authority denies a request in whole or in part, “the requester shall receive from the authority a written statement of the reasons for denying the written request.” Wis. Stat. § 19.35(4).

¶ 14 “If the custodian's decision is challenged ... a court must make its own independent decisions regarding these matters....” Erpenbach, 354 Wis.2d 61, ¶ 14, 848 N.W.2d 862. “ ‘The duty of the custodian is to specify reasons for nondisclosure and the court's role is to decide whether the reasons asserted are sufficient.’ ” Id. (quoted source omitted).

¶ 15 Here, the parties do not dispute that the billing invoices are “records” subject to the Wisconsin Public Records Law. The parties also do not dispute that the attorney-client privilege and the attorney work product doctrine are recognized exceptions to the general rule of disclosure under the law. See Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, 199 Wis.2d 768, 782–83, 546 N.W.2d 143 (1996) (attorney-client privilege); Seifert v. School Dist. of Sheboygan Falls, 2007 WI App 207, ¶¶ 27–28, 305 Wis.2d 582, 740 N.W.2d 177 (attorney work product).

¶ 16 As an authority seeking to redact information from records that are otherwise accessible under the public records law, the County has the burden to show that the redactions are justified. See Franzen v. Children's Hosp. of Wisconsin, Inc., 169 Wis.2d 366, 386–88, 485 N.W.2d 603 (Ct.App.1992) (“the party asserting the privilege bears the burden to establish that the privilege exists”). The question, then, is whether the County has met its burden to show that the material in the requested redactions in this case is, as the County asserts, privileged attorney-client communication or protected attorney work product. We address this question next.

C. Exceptions to Disclosure: Privileged Attorney–Client Confidential Communication

¶ 17 The County asserted the attorney-client confidential communication privilege for over 200 requested redactions, and repeated as its reason for each of those redactions the same following statement:

The billing record contains detailed descriptions of the nature of the legal services rendered to the County and providing access would directly or indirectly reveal the substance of privileged lawyer-client communications. Journal/Sentinel v. Sch. Dist.

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