Court: Wisconsin Supreme Court; January 8, 2013; Wisconsin; State Supreme Court
The Wisconsin Supreme Court is interpreting the Public Records Law in a case involving the Juneau County Star-Times and Juneau County. The court reviews a decision from the court of appeals that reversed a Circuit Court ruling, which had dismissed the Star-Times' complaint for access to certain legal invoices under the Public Records Law. The litigation pertains to an employee of the Juneau County Sheriff's Department, with the County defended by the Crivello Carlson law firm, retained by its insurer, Wisconsin County Mutual Insurance Corporation.
The liability insurance policy between the County and the insurance company stipulates that the insurance company will defend the County for covered occurrences and requires the County to cooperate with the insurer and its retained counsel. The law firm generated invoices for its services, which the Star-Times sought access to under Wis. Stat. 19.36(3), a provision that mandates public access to records produced under a contract with a governmental authority.
The Circuit Court ruled that the invoices did not fall under this provision, reasoning that the County did not contract with the insurer for the maintenance of the records in question. It also determined that even if the provision applied, the invoices were appropriately redacted to uphold attorney-client privilege. However, the court of appeals disagreed, reversed the lower court’s judgment, and ordered the County to provide unredacted invoices to the Star-Times. The Supreme Court affirms the court of appeals' decision.
The court of appeals affirmed the decision regarding the applicability of Wis. Stat. 19.36(3) to invoices produced by the insurance company under its liability insurance policy with the County. The County failed to provide sufficient evidence to support its claim that its redactions constituted privileged attorney-client information. The court established that the invoices are considered contractors' records due to the tripartite relationship formed by the liability insurance policy among the County, the insurance company, and the law firm. This relationship includes: 1) a contractual obligation of the insurance company to cover damages and attorney fees for the County, 2) the insurance company retaining the law firm to represent the County, and 3) the law firm establishing an attorney-client relationship with the County. Consequently, the invoices were generated during the law firm's representation of both the County and the insurance company, thus satisfying the criteria of Wis. Stat. 19.36(3). The court did not address the appropriateness of the redactions made by the circuit court, as the County did not seek a review of that issue. The court's ruling does not impact existing confidentiality or privilege rules, nor does it determine the matters to be resolved by the circuit court or the court of appeals.
The court affirmed the court of appeals' decision mandating the County to provide unredacted invoices to the Star-Times. The case's facts are undisputed: the County obtained a Public Entity Liability Policy from Wisconsin County Mutual Insurance Company, which retained the Crivello Carlson law firm to represent the County in legal matters involving a former deputy sheriff, Jeremy Haske. The law firm submitted invoices directly to the insurance company, which paid them; however, neither the law firm nor the insurance company provided invoices to the County. The liability insurance policy does not specify the County's rights regarding access to such records, and no contract between the law firm and the insurance company is recorded.
On February 7, 2010, Star-Times reporter Peter Rebhahn requested access to the law firm's legal bills. The law firm responded on February 10 with redacted invoices, citing privilege. Following a follow-up request from the Star-Times, which claimed the response was inadequate, the County Clerk upheld the redactions, stating they were legally privileged. Consequently, the Star-Times sought mandamus and declaratory relief against the County on March 9, 2010, which led to cross-motions for summary judgment. The circuit court initially ruled in favor of the County, but the court of appeals later reversed that decision.
The case involves the interpretation of the Public Records Law based on undisputed facts, with the court independently analyzing the law while considering prior rulings and statutory provisions. The court noted the relevance of Wisconsin Statute 19.36(3) regarding contractors' records.
A record is considered under the Public Records Law if it is created or maintained by an authority, as defined in Wis. Stat. 19.32(2). However, records produced or collected under a contract with a non-authority are also subject to this law, ensuring government entities cannot evade responsibilities by outsourcing record creation or custody. Specifically, Wis. Stat. 19.36(3) mandates that authorities must allow inspection and copying of such records to the same extent as records they maintain themselves.
In this case, the County, as an authority, entered into a liability insurance contract with an insurance company, which is not an authority. The primary dispute concerns whether invoices from a law firm, hired by the insurance company, qualify as records produced or collected under this contract. The circuit court concluded that the invoices were not produced under the County-insurance company contract, aligning with the County’s position that there was no direct contract with the law firm.
Conversely, the court of appeals determined that the invoices were collected under the insurance contract due to the insurance company's obligation to defend the County, which would inherently involve collecting invoices from the law firm. The court dismissed the County's argument that the invoices fell under the agreement between the insurance company and the law firm.
Definitions of "produced" and "collected" were examined, with "produced" suggesting creation through effort, while "collected" refers to gathering or receiving from various sources. The Department of Justice also provided insights focusing on the term "under" in the statute, suggesting a broader interpretation of the contractual relationship.
The interpretation of Wis. Stat. 19.36(3) asserts that "record produced or collected under a contract" refers to records created or gathered as required by a contract. The Department's substitution of "as required by or obligated by" for "under" limits the scope of the statute, which could also mean "in accordance with" or "subject to" a contract. The Department claims historical changes to the statute support its interpretation, noting the removal of language that defined a contractor's record as one "used in connection with the performance" of services, suggesting a legislative intent to narrow the provision. However, the absence of specific language in a final bill is not conclusively persuasive regarding legislative intent.
In applying this interpretation, the Department concluded that invoices were not required by the liability insurance policy, but rather arose from an agreement between the insurance company and the law firm. This narrow interpretation appears to conflict with public policy, which promotes transparency in government affairs. It may also allow for evasion of the statute by enabling authorities and contractors to assign record creation and custody to agents.
The court, along with the circuit court, court of appeals, and Department of Justice, examined the meanings of "produced," "collected," and "under" within the statute, emphasizing that these terms are commonly understood rather than technical. Their meanings depend on context, which includes the relationship to other statutory provisions and the factual circumstances of the case. The court intends to interpret these terms in their usual meanings, considering the specific context of the current dispute.
The case involves a tripartite relationship among the County, an insurance company, and a law firm engaged by the insurance company to represent the County under a liability insurance policy. This relationship establishes multiple contractual connections: one between the County and the insurance company, one between the insurance company and the law firm, and an attorney-client relationship between the law firm and the County. When the insurance company hires the law firm for the defense of the County, both parties accept this arrangement under the terms of the liability insurance policy, which also imposes duties on each party to the others.
The County is obligated to assist both the insurance company and the law firm, and representatives of the County have engaged directly with the law firm regarding the litigation. This tripartite relationship is distinctive; it differs from typical contractor-subcontractor relationships because the County has a direct contractual relationship with the law firm, establishing a direct attorney-client relationship. The County's characterization of the law firm as merely a subcontractor to the insurance company is inaccurate, as that would suggest a lack of direct interaction and contractual obligation between the County and the law firm. Ultimately, the unique nature of this tripartite relationship allows for the application of contractors' records provisions to the invoices relevant to the insurance policy.
Invoices requested by the Star-Times are not merely private records from a contractual relationship between the insurance company and the law firm; rather, they are linked to a direct attorney-client relationship between the County and the law firm under the liability insurance policy. These invoices were generated as part of the County's defense in the Haske matters and reflect the contractual and attorney-client relationship established between the County and the law firm via the insurance policy.
Citing the case of Journal/Sentinel, Inc. v. School Board of Shorewood, the court found that a public body cannot evade public access to records by delegating record creation and custody to an agent. In Journal/Sentinel, the court mandated the production of a document prepared by an attorney for the school board, asserting that such documents are subject to disclosure under the Public Records Law, even if created by an attorney.
While the present case differs from Journal/Sentinel, where the school board directly contracted with the attorney, the County's procurement of liability insurance and allowance for the insurance company to retain counsel effectively creates a similar attorney-client relationship with the law firm. Therefore, records created by the law firm in this context may also be subject to the Public Records Law.
The liability insurance policy establishes a tripartite relationship involving the County, the insurance company, and the law firm, which in turn creates an attorney-client relationship between the County and the law firm. Consequently, invoices generated during the law firm's representation of the County under this policy fall under the purview of Wisconsin Statute 19.36(3), which governs their accessibility. The Department of Justice contends that a narrower interpretation of this statute aligns with public policy by facilitating oversight of public entities while safeguarding the confidentiality of private financial arrangements between the insurance company and the law firm. However, this argument is evaluated against the legislature's declaration of public policy in Wis. Stat. 19.31, which emphasizes a presumption of complete public access to government-related documents, stating that denial of access is contrary to public interest except in exceptional cases.
The Department argues that the invoices are private records unrelated to governmental affairs, asserting that other records are available for oversight. Nevertheless, the existence of alternative records does not preclude access to the invoices if they are deemed accessible under Wis. Stat. 19.36(3). The Star-Times contends that if Wis. Stat. 19.36(3) does not apply to the invoices, it would undermine access to other documents produced by the law firm, such as memoranda or settlement agreements. Ultimately, the invoices are closely tied to the County's attorney-client relationship with the law firm and the liability insurance policy, leading to the conclusion that access to these invoices is consistent with the legislative intent of ensuring transparency in governmental affairs. The court will also consider prior interpretations of Wis. Stat. 19.36(3) to inform its decision.
The interpretation and application of Wis. Stat. 19.36(3) in this case align with existing case law, despite no prior cases directly addressing the specific circumstances at hand. The attorney invoices in question are positioned between established decisions, each reflecting distinct factual scenarios, none of which pertain to the tripartite attorney-client relationship relevant to this case. The analysis cites WIREdata, Inc. v. Village of Sussex, where the court ruled that municipalities cannot evade Public Records Law obligations by outsourcing record maintenance to independent contractors. In that case, the records were deemed under the authority's control, even though maintained by contractors.
In the current matter, while the County did not contract directly with the law firm, a contractual relationship exists through the liability insurance policy between the County and the insurer, establishing obligations between the County and the law firm. This substantial interaction supports that the requested invoices, collected under this contractual framework, fall within the scope of Wis. Stat. 19.36(3). The court of appeals' previous rulings in Journal/Sentinel, Machotka v. Village of West Salem, and Building Construction Trades Council v. Waunakee Community School District are also cited, reinforcing that the present ruling is consistent with these established precedents regarding records provision in similar contexts.
Baird's sales records to ultimate investors were deemed not to fall under its contract with the Village, as Baird was only contracted to underwrite the bond issue. Any sales activity was for Baird's own benefit, not the Village's, and the records were created after Baird fulfilled its contractual obligations. In contrast, the insurance company's obligation to the County involved paying attorney fees, with the relevant invoices produced under the liability insurance policy, thus subject to Wis. Stat. 19.36(3). The court referenced *Building Construction Trades Council v. Waunakee Community School District*, which examined whether payroll records from subcontractors were subject to disclosure under the Public Records Law when those records were not produced under the school district's contract with the general contractor. The court required evidence to connect the requested records to the school district’s contract, ultimately concluding that prevailing wage laws did not extend the public records requirement to the subcontractors’ payroll records, as they were not part of the original contract. The County similarly contends there is a disconnect between its obligation under Wis. Stat. 19.36(3) to disclose records related to its contract with the insurance company.
Invoices generated by the law firm for the insurance company are deemed contractors' records under Wis. Stat. 19.36(3), stemming from a tripartite relationship involving the County, the insurance company, and the law firm established by a liability insurance policy. This policy creates contractual obligations: between the County and the insurance company for coverage of damages and attorney fees, between the insurance company and the law firm for legal representation of the County, and between the law firm and the County for attorney-client relations. The invoices in question, representing legal services rendered, were produced in the context of this representation. Consequently, the court affirms the appellate decision, mandating the County to provide unredacted copies of the invoices to the Star-Times, as the requirements for access under the statute have been satisfied.
The Public Records Law, identified as Wis. Stat. 19.31-39 (2009-10), is distinct from provisions related to document retention and preservation under Wis. Stat. 16.61-62. The case involves Juneau County Star-Times, represented by publisher George Althoff, and Juneau County Clerk Kathleen Kobylski. The County Mutual liability insurance policy includes a right and duty to defend against lawsuits seeking monetary damages, but limits the amount payable and specifies that defense costs are covered beyond the policy limit after deductibles are met.
Wis. Stat. 19.36(3) mandates that records produced under contracts with external parties must be available for inspection, but this does not extend to records that are not maintained by the authority. The circuit court determined that the legal invoices in question were not records under Wis. Stat. 19.32(2) since they were neither created nor held by the County, nor were they considered contractors' records under Wis. Stat. 19.36(3) as they stemmed from an agreement between the County’s insurer and a law firm not involving the County. The court ruled that the County did not waive its right to contest the classification of the invoices despite its initial response to the records request. Additionally, even if the invoices were subject to a Public Records request, they contained detailed legal service descriptions and were protected by attorney-client privilege.
The request for access specifically sought bills submitted by Attorney Michele Ford or her law firm for services rendered to the County Sheriff during 2008-2010. In a related case, Milwaukee Journal Sentinel v. City of Milwaukee, each party filed for summary judgment, and the review of such decisions is conducted independently, utilizing the methodologies of the circuit court and court of appeals.
Summary judgment is warranted when there are no genuine material facts in dispute and the moving party is entitled to judgment as a matter of law. In this case, the facts are undisputed, with no reasonable inferences preventing summary judgment regarding the applicability of Wis. Stat. 19.36(3) to the invoices. Various organizations, including the Wisconsin Freedom of Information Council, submitted a nonparty brief supporting the court of appeals’ position, arguing that the contractors' records provision protects public access to information and prevents authorities from circumventing the Public Records Law through contracts. The Department of Justice plays a crucial role in enforcing this law and has been authorized by the legislature to advise on its applicability, although its opinions are not binding on the court. The Department criticized the court of appeals for broadly interpreting Wis. Stat. 19.36(3), as this could unjustly convert private records into public ones. The court noted that legislative nuances are unreliable indicators of intent and reaffirmed that the contractors' records provision aims to ensure authorities do not evade Public Records Law responsibilities by delegating record creation and custody to contractors. The construction of Wisconsin laws is guided by the principle that words and phrases should be interpreted consistently with the legislature's manifest intent.
Words and phrases in legal documents are interpreted based on common usage, while technical terms are defined by their legal meanings. Contextual interpretation involves understanding relationships with other statutes and factual settings. An attorney hired by an insurance company to defend an insured assumes all duties of the attorney-client relationship, establishing a direct relationship with the insured, not the insurer. The insurer, by designating a lawyer, does not become the lawyer's client; instead, the attorney-client relationship is one of agency. Substantial interactions occurred between a law firm and the County, including multiple meetings and correspondence by Attorney Michele Ford to prepare a defense for Sheriff Oleson, indicating significant ramifications for the County due to this attorney-client relationship. A tripartite relationship was not established in cases where the law firm was retained by the insured and not compensated by the insurance company, which acted merely as a claims administrator. Wisconsin lawyers typically represent both insurers and insureds in claims defense, maintaining ongoing relationships permitted under the Wisconsin Rules of Professional Conduct. The County did not seek to circumvent the Public Records Law in this context.
The Public Records Law in Wisconsin does not require an authority to have an intention to evade the law for the contractors' records provision to apply, making such records accessible. Wisconsin Statute 19.31 emphasizes the importance of public access to government information, asserting that citizens should have the greatest possible access to governmental affairs and actions of public officials. Statutes 19.32 to 19.37 mandate a presumption of complete public access, with denials of access being contrary to public interest and only permissible in exceptional cases. The Department of Justice questions the purpose behind a request for invoices, but requests cannot be denied based on the requester's unwillingness to disclose their purpose as per Wis. Stat. 19.35(1)(i). The Star-Times argues that the invoices serve a public purpose by informing taxpayers about expenditure and allegations of misconduct, although it has not made the request's purpose central to its argument. Comparisons are drawn to a previous case where the requester's rationale was critical to their public policy argument for access to subcontractor records.
