September: Zoning board decisions do not merit secrecy

2003 Columns

Every so often a case comes along that reminds us how valuable Wisconsin’s open records laws and open meeting laws are to the concept of a free press. Just such a case is now pending before the Wisconsin Supreme Court — GPS Inc. v. the Town of St. Germain.

GPS Inc., a contracting company, asked for a variance from a town road setback to enable it to build a house on a property in St. Germain. At the public hearing to decide the issue, before any discussion had taken place, the zoning appeals board was handed a typed decision, prepared by the town’s attorney. The board members read the decision in silence, then voted to deny the variance.

Outraged, GPS filed an open records request to find out who told the lawyer to make that decision and when. The board refused to turn over the documents, citing attorney-client privilege. GPS then sued.

Vilas County Circuit Court Judge James Mohr ordered the town to turn over the documents. Mohr did not decide the privilege issues. Instead, he ruled that even if the documents were privileged, the public’s interest in this case outweighed the board’s interest in having secret communications.

The Court of Appeals held that governments have a right to privileged communications with lawyers, and sent the case back to Mohr. Mohr again ruled in favor of GPS, finding the documents were not communications intended to be confidential. What’s more, he stated, the statutes that govern zoning appeals do not permit closed meetings or secret communications.

The town appealed a second time and once again found a receptive Court of Appeals, which overruled Mohr. GPS has now petitioned the Supreme Court for review.

At issue are several matters of critical importance to all those who are interested in open government (in other words, all of us):

  • The statute governing zoning appeals boards says that all meetings of the board shall be open to the public and all records of its examinations shall be public records. That is the Legislature’s clear mandate. Can a board subvert that mandate simply by using attorneys in the decision-making process?
  • In this case, the board chairman wrote to the town’s attorney almost a full month before the first public hearing. What if that letter says, in effect, “I want you to find a way to deny the GPS variance?” Should such a communication be regarded as privileged?
  • If the Court of Appeals decision stands, it will embolden other zoning appeals boards to use attorneys to shield their proceedings from public scrutiny. Other government boards and agencies will soon do the same.

Hopefully, that will never come to pass. Wisconsin justifiably takes pride in its tradition of open government. Our Supreme Court has steadfastly recognized the importance of open government and has enforced the statutes with both reason and passion in a long line of cases.

However, that long line of cases also indicates that government officials are sometimes adverse to conducting the public’s business in public. Usually those leading the charge for open records are newspapers or other media, and usually the cost of these fights greatly exceeds the news value of the individual records being sought.

There is a role for attorneys in government. Government boards need to consult with attorneys to ensure they are acting lawfully. But that doesn’t mean every time a board asks for advice, or an attorney gives it, those communications should be secret.

Outside of the litigation context, where exposing settlement or trial strategies could harm the public’s interest, it is hard to see how Wisconsin citizens are ever served by secret communications between government officials and lawyers. Actually, the opposite is true: What advice officials ask of government lawyers and how they respond is integral to knowing how government functions. Both the official and the lawyer are doing the people’s business and that business should be conducted in the light of day.

The Supreme Court should grant a review in this case. Allowing the attorney-client privilege to trump the Open Records Law would create a dangerous and unwelcome precedent.

Richard Moore is an investigative reporter with the Lakeland Times. Your Right to Know is a monthly column produced by the Wisconsin Freedom of Informational Council, a media group devoted to protecting public access to meetings and records.