63 Op. Att'y Gen. 400 (1974)

Wisconsin Attorney General Opinions
 
63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

19 September 1974

Governor; Public Records;
Scope of the duty of the Governor
to allow members of the public to
examine and copy public records
in his custody discussed.

PATRICK J. LUCEY, Governor

You request my opinion as to the scope of
your duty, if any, to allow members of the
public to examine and copy documents in
your office of which you have official
custody as Governor.

Your inquiry is occasioned in part by a
request from a citizen to examine all
correspondence addressed to you concerning
a bill recently passed by the legislature.
However, you are also concerned with any duty
you have to permit examination with
respect to the following:

(1)  Correspondence

     (a)  concerning or explaining
          legislation or other matters of
          general concern or official
          policies and actions;

     (b)  concerning problems
          involving either

          (i)  the policies or practices
               of a governmental agency
               or official or

          (ii) matters not involving
               governmental action
               or public policy and
               directly affecting the
               correspondent or another;

     (c)  concerning complaints against or
          allegations of any kind of
          misconduct by public officials
          or others;

     (d)  obtained by me upon my promise
          of confidentiality;

     (e)  expressly (e.g., marked as
          "confidential" or "personal")
          or implicitly designated
          in some way as private
          by the correspondent;

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

     (f)  whether or not otherwise
          subject to disclosure,
          containing defamatory or
          other matters adversely
          reflecting upon the
          reputation of any person.

(2)  Memoranda or working papers of any sort
     prepared by members of the staff of the
     Executive Office or other governmental
     (federal, state or local) agency for
     their own or my use in the conduct
     of official State business.

It will be impossible in this opinion to
answer with specificity all of the possible
questions involved or implied with respect
to the above or connected with the four
other questions you raise which will
be set forth hereunder.

Your determination to permit or withhold
inspection must be made on a case-by-case
basis in view of the specific document,
time elements and all other circumstances
then and there existing.

Specific legal advice can best be
given on the same basis.

I am of the opinion that all of the
correspondence, documents and memoranda
referred to above, with the exception of
truly personal correspondence or purely
fugitive papers having no relation to the
function of your office, are public records
within the meaning of Sections 16.80(2)(a),
19.21(1), Stats., and are by reason of
Section 19.21(2), Stats., available to
any citizen for purposes of inspection
and copying subject to the limitations
contained in

State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672,
137 N.W.2d 470

and

Beckon v. Emery (1967),
36 Wis.2d 510,
153 N.W.2d 501.

Response to your inquiry requires
limited discussion of the
separation of powers doctrine.

In our constitutional scheme there are three
coordinate, substantially independent
branches; namely, executive,
legislative, and judicial.

Each, so long as operating within its
legitimate field, is supreme.

It is for the court, in the ultimate, to
determine whether the boundaries of a
particular field have been overstepped
and, if so, to nullify or stay the
transgression.

The power to make a law is vested
in the Senate and Assembly.

State ex rel. Mueller v. Thompson (1912),
149 Wis. 488, 491,
137 N.W. 20.

The legislature cannot interfere or preclude
the exercise of constitutionally
conferred executive power.

Where the Constitution does not otherwise
provide or preclude, the legislature has
power to enact a law which the executive is
constitutionally bound to faithfully execute.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

Where the Constitution or a statute vests
discretion in the chief executive officer,
neither the legislature nor the courts
can control its exercise so long as it
continues to be vested in him.

State ex rel. Warren v. Nusbaum (1973),
59 Wis.2d 391, 450,
208 N.W.2d 780.

The Governor and his agents are liable to
judicial remedies, when not acting within the
scope of executive authority, in violation of
law or in excess of their powers, the same as
other persons, and the court has power but
will not act coercively as to the Governor
except in cases of extreme urgency.

The acts of the Governor within the exercise
of his lawful authority are not subject
to judicial review.

Ekern v. McGovern (1913),
154 Wis. 157, 208,
142 N.W. 595.

I am aware of no constitutional provision
or statute which by express language or
necessary implication makes any of the
public records in your custody confidential
or otherwise absolutely privileged which
would absolve you from the requirement
of compliance with the provisions of
Section 19.21(2), Stats., as limited.

Sections 19.21(1), (2), (3), (4),
Stats., provides:

19.21     Custody and delivery of
          official property and records.

19.21(1)  Each and every officer of the
          state, or of any county, town,
          city, village, school district,
          or other municipality or district,
          is the legal custodian of shall
          safely keep and preserve all
          property and things received from
          his predecessor or other persons
          and required by law to be filed,
          deposited, or kept in his of or
          which are in the lawful possession
          or control of himself or his
          deputies, or to the possession
          or control of which he or they
          may be lawfully entitled,
          as such officers.

19.21(2)  Except as expressly provided
          otherwise, any person may with
          proper care, during office hours
          and subject to such orders or
          regulations as the custodian
          thereof prescribes, examine
          or copy any of the property
          or things mentioned in 19.21(1).

          Any person may, at his own expense
          and under such reasonable
          regulations as the custodian
          prescribes, copy or duplicate
          any materials, including but not
          limited to blueprints, slides,
          photographs and drawings.

          Duplication of university expansion
          materials may be performed away
          from the office of the custodian
          if necessary.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

19.21(3)  Upon the expiration of his term of
          office, or whenever his office
          becomes vacant, each such officer,
          or on his death his legal
          representative, shall on demand
          deliver to his successor all such
          property and things then in his
          custody, and his successor shall
          receipt therefor to said officer,
          who shall file said receipt, as the
          case may be, in the office of the
          secretary of state, county clerk,
          town clerk, city clerk, village
          clerk, school district clerk, or
          clerk or other secretarial officer
          of the municipality or district,
          respectively; but if a vacancy
          occurs before such successor is
          qualified, such property and things
          shall be delivered to and be
          receipted for by such secretary or
          clerk, respectively, on behalf of
          the successor, to be delivered to
          such successor upon the latter's
          receipt.
 
 

19.21(4)  Any person who violates this
          section shall, in addition to any
          other liability or penalty, civil
          or criminal, forfeit not less than
          $25 nor more than $2,000; such
          forfeiture to be enforced by a
          civil action on behalf of, and the
          proceeds to be paid into the
          treasury of the state,
          municipality, or district,
          as the case may be.

Section 16.80(2), Stats., is applicable
to records in the office of the
Governor and provides, in part:

16.80(2)       DEFINITIONS.
               As used in this section:

16.80(2)(a)    "Public records" means all
               books, papers, maps,
               photographs, films,
               recordings, or other
               documentary materials or any
               copy thereof, regardless
               of physical form or
               characteristics, made, or
               received by any agency of
               the state or its officers
               or employes in connection
               with the transaction of public
               business and retained by that
               agency or its successor as
               evidence of its activities
               or functions because of the
               information contained therein;
               except the records and
               correspondence of any member
               of the state legislature.

16.80(2)b)     "State agency" means any
               officer, commission, board,
               department or bureau
               of state government. . . .

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

Section 16.80(4), Stats., provides:

16.80(4)  APPROVAL TO DESTROY.

All public records made or received or in the
custody of a state agency shall be and remain
the property of the state and as such may not
be destroyed without the written approval of
the originating office or its legal successor
and the written approval of the public
records board.

In an opinion to the Chairman of the State
Public Records Board dated July 24, 1974,
it was stated in part:

     Under general law in the United States,
     public records are the property of the
     state or other unit of government and
     not of the individual or officer who
     happens at the moment to have them in
     possession.

When they are deposited in the place
designated for them by law, they must
remain and can be removed, transferred, or
disposed of only as provided by statute.

66 Am. Jur. 2d, Records and Recording Laws,
Section 10, p. 347.

Independent of statute, "public records"
include not only papers specifically required
to be kept by a public officer, but all
written memorials made by a public officer
within his authority where such writings
constitute a convenient, appropriate, or
customary method of duties of the office.

International Union v. Gooding (1947),
251 Wis. 362,
29 N.W.2d 730.

Section 19.21(1), Stats., goes much further
than this in defining public records
in Wisconsin.

However, even the International Union case
recognizes that this section does not require
an officer to keep, file, and ultimately
deliver to his successor every paper or
communication without respect to the relation
of the paper to the functions of the office
but that an officer may dispose of purely
fugitive papers having no relation to
the function of the office.

38 OAG 22, 23 (1949).

     . . . . . . . The definition in Section
     16.80(2)(a), Stats. is a codification of
     case law with respect to the definition
     of public records.

     It recognizes that an officer has the
     right to determine whether a paper which
     is not required by law or valid rule
     to be filed, deposited, or kept in his
     office, should be retained as evidence
     of the activities or functions because
     of the information contained therein.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

     I am of the opinion that officers
     covered by Sections 19.21(1) and (3),
     Stats., have the same power and that
     such power permits the destruction of
     fugitive papers, scrap paper, and in
     some cases, preliminary work sheets,
     drafts, surplus copies, etc.

     A given paper may be a public record
     within the meaning of Section 19.21(1),
     Stats., for the purposes of inspection
     and copying as long as it is in the
     lawful possession or control of an
     officer, or his deputies, but may not
     necessarily be one which said officer is
     required to preserve under Section
     19.21(1), Stats., or to deliver to his
     successor under Section 19.21(3), Stats.
 

Under the latter statute
he need only deliver

     all such property and things
     then in his custody.

     There are many documents which may
     lawfully come into the hands of a
     public officer over which he is
     only entitled to temporary custody
     and which may or must be
     surrendered to the person owning
     the same or for other purposes.

     For example, certificates of bonds
     must be delivered when sold or at
     maturity.

You inquire what materials, if any, are
absolutely privileged.

It is my opinion that none of the documents
you refer to are absolutely privileged in
the sense that you can unilaterally and
absolutely deny disclosure.

A member of the public would have the right
to institute "mandamus" in Circuit Court for
Dane County to determine whether the document
or other item sought to be inspected was in
fact a public record within the meaning of
Sections 16.80(2)(a), 19.21(1), Stats.,
and to test any reason given for
denial of inspection.

You further inquire what factors may
be properly considered in deciding
whether to disclose.

The leading Wisconsin cases governing
the right to public access are

State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672,
137 N.W.2d 470

and

Beckon v. Emery (1967),
36 Wis.2d 510,
153 N.W.2d 501.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

These cases essentially hold,
as elaborated in

58 OAG  67 (1969),
60 OAG   9 (1971),
60 OAG  43 (1971),
60 OAG 284 (1971),
60 OAG 470 (1971),
61 OAG  12 (1972),
61 OAG 361 (1972),

that:

1.   The public right to full access to all
     public records provided for in Section
     19.21(2), Stats., is qualified in the
     following respects:

     a.   The right to inspect is subject to
          such reasonable regulations with
          respect to hours, procedure, etc.,
          that the custodian may prescribe
          to limit unreasonable interference
          with the ordinary operations of
          his office.

     b.   The right may be limited or denied
          by express statutory provision.

     c.   The custodian may and has a duty to
          deny inspection where he determines
          that permitting inspection would
          result in harm to the public
          interest which outweighs any
          benefit that would result from
          granting inspection.

          Specific reasons must be given when
          inspection is withheld and the
          person seeking the same can then
          resort to court action to test
          the sufficiency of such reasons.

          Statements that the records
          are "confidential" or that
          permitting inspection would
          be "contrary to the public
          interest" are merely legal
          conclusions and are not a
          substitute for the specific reasons
          which must be given in each case.

          In testing the sufficiency of a
          stated specific reason, the trial
          judge would examine the record or
          document in camera and would
          determine

             "whether or not the harm likely
              to result to the public
              interest by permitting the
              inspection outweighs the
              benefit to be gained by
              granting inspection."

State ex rel. Youmans, supra, p. 682.

Where no specific reason was given
for withholding inspection

     "the writ of mandamus compelling
     its production should issue as a
     matter of course."

     Beckon v. Emery, supra, p. 518.

2.   Any member of the public, regardless of
     his motives, has a right to inspect any
     public record, subject to the three
     limitations stated above.

     This does not mean that the custodian or
     court cannot consider the claimed or
     stated purpose for which the record is
     to be used in balancing the interests.

See
United States v. Richard M. Nixon, infra.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

3.   . . . public policy, and hence the
     public interest, favors right of
     inspection of documents and
     public records.

     It is in the unusual or exceptional
     case, where the harm to the interest
     that would be done by divulging matters
     of record would be more damaging than
     the harm that is done to public policy
     by maintaining secrecy, that the
     inspection should be denied.

     Beckon v. Emery, supra, p. 516.
 

4.   The custodian should make his
     determination on a case-by-case basis in
     view of the record involved and the
     circumstances then and there existing.

In Youmans the court declined to catalog the
situations which might justify refusal but
stated that Section 19.21, Stats., will be
construed in pari materia with Section
66.77, Stats., the Wisconsin open meeting
law, and that the policy guidelines for
holding closed meetings contained in Section
66.77(4), Stats., as recreated by Chapter
297, Laws of 1973, will be applicable to the
question of sufficiency of stated reason
for withholding inspection under Section
19.21, Stats.

We will not set forth the detailed provisions
of Section 66.77(4), Stats., here.

A discussion of the 66.77(4)(b), (c), (e)
exceptions appears in 60 OAG 468, 476-481.

A discussion of the 66.77(4)(d), (e), (f)
exceptions appears in 61 OAG 361, 364.

Those discussions will not be restated here
other than to note that any damage to
reputations to justify withholding must be
"undue" damage and that time elapsed,
pendency of or probability of criminal
prosecution are matters to be considered.

The Youmans case did point out that other
common law exceptions may justify withholding
of access; including documentary evidence in
the hands of a district attorney, minutes of
a grand jury, evidence in a divorce action
sealed by the court and information gathered
under a pledge of confidentiality.

With respect to pledges of confidentiality,
opinions at

60 OAG 284, 289 (1971),
61 OAG 361, 365 (1972),

state that the following criteria
should be applied:

     First,there must have been
     a clear pledge made.

     Second, the pledge should have been
     made in order to obtain the
     information.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

     Third, the pledge must have been
     necessary to obtain the
     information.

     Finally, even if a pledge of
     confidentiality fulfills these
     criteria, thus making the record
     containing the information obtained
     clearly within the exception, the
     custodian must still make an
     additional determination in each
     instance that the harm to the
     public interest that would result
     from permitting inspection
     outweighs the great public interest
     in full inspection of public
     records.

Statutory rules of privilege as to production
of evidence and the giving of testimony may
form the basis in proper case for
nondisclosure of records.

In many cases the privilege is conditional
and may be waived by the person for whose
protection the privilege exists.

A non-exhaustive listing would include

private communications between husband
and wife, Section 885.18, Stats.;

confessions to clergymen,
Section 885.20, Stats.;

communication by student to dean of
institution of higher education or school
psychologist, Section 885.025, Stats.;

communications to doctors by patients,
Section 885.21, Stats.; and

communications to attorneys,
Section 885.22, Stats.

None of these would be directly applicable to
the Governor with the exception of the last
and that would only apply to documents in
custody of his attorney and not to documents
officially in his own custody.

Article XIV, Section 13, Wisconsin
Constitution continues such parts of the
common law in force in the Territory of
Wisconsin not inconsistent with the
Constitution as part of the law of
this state until altered or
suspended by the legislature.

Since Youmans, supra, p. 681, states that
common law exceptions may justify withholding
of access to public records in certain cases,
some discussion of executive privilege is in
order.

I am not aware of any Wisconsin cases dealing
with the subject with the possible exception
of State ex rel. Reynolds v. Circuit Court
cited below.

It would generally refer to privilege with
respect to the required production of
evidence or giving of testimony in
court proceedings.

I am of the opinion that limited executive
privilege exists in Wisconsin which would
in certain cases justify the withholding
of public access to specific public records
on the basis of specific reasons stated and
upheld by a court.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

In my opinion it would apply to the
office of Governor as the chief
executive office of the state.

Since executive privilege involves some of
the concepts applicable to the lawyer's work
product rule, reference to the following
Wisconsin cases is appropriate.

State ex rel. Reynolds v.
Circuit Court (1961),
15 Wis.2d 311,
112 N.W.2d 686,
113 N.W.2d 537,
involved a state condemnation proceeding.

The court stated that the attorney-client
privilege was to be narrowly construed and
restricted to communications made by the
client to the attorney and would not cover
transactions had with or communications to
third persons.

The court referred to the "work product of
the lawyer" rule referred to in Hickman v.
Taylor (1947), 329 U.S. 495, 67 S.Ct. 385,
91 L.Ed. 451, in which the U.S. Supreme Court
held that the work product of an attorney,
there considered, was outside the
attorney-client privilege, but that absent
compelling justification, the court should
not require production of written statements
of witnesses, and the lawyer's memoranda
and mental impressions of oral statements
of witnesses.

However, in Reynolds the court held that a
claim of privilege could be interposed if one
of the experts was asked to disclose a
communication which he had made to the State
Highway Commission or its staff or counsel
but that neither the attorney-client
privilege nor the "work product of the
lawyer" rule would preclude attorneys for the
landowner from taking depositions of the
expert concerning the "relevant opinions they
have formed, and the observations, knowledge,
information, and theories on which the
opinions are based." p. 321.

Wisconsin has adopted the rationale of
Hickman v. Taylor as applied to Section
269.57, Stats., inspection of documents
and Section 887.12, discovery proceedings.

In

State ex rel. Dudek v. Circuit Court (1967),
34 Wis.2d 559, 589,
150 N.W.2d 387,

the court stated:

     From Hickman, as quoted above, we
     conclude that a lawyer's work
     product consists of the information
     he has assembled and the mental
     impressions, the legal theories and
     strategies that he has pursued or
     adopted as derived from interviews,
     statements, memoranda,
     correspondence, briefs, legal and
     factual research, mental
     impressions, personal beliefs, and
     other tangible or intangible means.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

     This broad definition of lawyer's
     work product requires that most
     materials, information, mental
     impressions and strategies
     collected and adopted by a
     lawyer after retainer in
     preparation of litigation and
     relevant to the possible issues be
     initially classified as work
     product of the lawyer and not
     subject to inspection or discovery
     unless good cause for discovery is
     shown.

Also see
Halldin v. Peterson (1968),
39 Wis.2d 668, 673,
159 N.W.2d 738.

In Carl Zeiss Stiftung v. V.E.B.
Carl Zeiss (D.C. 1966),
40 F.R.D. 318, 324, it was stated:

     [3]  Executive privilege is a
          phrase of release from
          requirements common to private
          citizens or organizations, an
          exemption essential to
          discharge of highly
          important executive
          responsibilities.

          While it is agreed that the
          privilege extends to all military
          and diplomatic secrets, its
          recognition is not confined
          to data qualifying as such.

          Whatever its boundaries as to other
          types of claims not involving state
          secrets, it is well established
          that the privilege obtains with
          respect to intra-governmental
          documents reflecting advisory
          opinions, recommendations and
          deliberations comprising
          part of a process by which
          governmental decisions and
          policies are formulated.
 
 

     [4]  This privilege, as do all
          evidentiary privileges,
          effects an adjustment between
          important but competing interests.

          There is, on the one hand, the
          public concern in revelations
          facilitating the just resolution of
          legal disputes, and, on the other,
          occasional but compelling public
          needs for confidentiality.

          In striking the balance in favor of
          nondisclosure of intra-governmental
          advisory and deliberative
          communications, the privilege
          subserves a preponderating policy
          of frank expression and discussion
          among those upon whom rests the
          responsibility for making the
          determinations that enable
          government to operate, and thus
          achieves an objective akin to those
          attained by other privileges more
          ancient and commonplace in
          character.

          Nowhere is the public interest more
          vitally involved than in the
          fidelity of the sovereign's
          decision   and policy-making
          resources.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

The Carl Zeiss case contains one of
the best statements of the rule,
its purpose and limitations.

It also gathers the U.S. Supreme Court
citations which support the privilege
including United States v. Morgan (1941),
313 U.S. 409, 422, 61 S.Ct. 999,
85 L.Ed. 1429, which holds that it is not the
function of the court to probe the mental
processes by which the Secretary of
Agriculture made his determination to make an
order fixing maximum rates for stockyards,
and United States v. Reynolds (1953), 345
U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727, which
recognized that executive privilege as to
military and state secrets has been long
established in the law of evidence and that
whether the privilege shall lie shall be for
the court and cannot be left to the caprice
of executive officers.

At pp. 7-8 of Reynolds, the court stated:

     . . . The privilege belongs to the
     Government and must be asserted by
     it; it can neither be claimed nor
     waived by a private party. It is
     not to be lightly invoked.

     There must be a formal claim of
          privilege, lodged by the head
          of the department which has
          control over the matter, after
          actual personal consideration
     by that officer.

     The court itself must determine
     whether the circumstances are
     appropriate for the claim of
     privilege, and yet do so
     without forcing a disclosure
     of the very thing the privilege
     is designed to protect. . . .

Executive privilege must be asserted on the
basis of specific reasons by the chief
executive officer or other high official
involved who has the burden of establishing
the privilege.

At least one court has held that the court
cannot in every case insist on in camera
inspection of the documents involved but
that proof can be by other means.

The privilege is conditional and not
absolute, with the court balancing
the competing interests.

In United States v. Gates (D.C. Colo. 1964),
35 F.R.D. 524, the court held that historical
files prepared by the Internal Revenue
Service reflecting valuation of a company and
past tax returns of members of a family sued,
even though in the hands of government
attorneys, were not within attorney-client
privilege and did not constitute government
attorneys' work product and that they were
not protected from discovery by executive
privilege since there was no claim that
military, diplomatic or other high policy
secrets were involved and that even if there
were, executive privilege was waived where
the government as plaintiff maintains an
action in which the documents in question
would be discoverable in the absence of
purported executive privilege.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

In Wood v. Breier (E.D. Wis. 1972),
54 F.R.D. 7, it was held that under the
federal statute discovery may be proper
notwithstanding a claim for executive
privilege when the basis of the suit arises
from alleged misconduct or perversion of
power by a governmental official involving
federal, state or local government.

The court gave the following guidelines.

The government should not lightly invoke
claim of executive privilege when it fears
discovery of its confidential information
will impair its ability to function as it is
the duty of the court to make independent
determination of whether a privilege
does exist.

Such determination cannot be made in the
abstract but must be done on a case-by-case
ad hoc basis by balancing the applicable
public policies and the material sought to be
discovered in each individual case.

Where law enforcement investigations are
involved, discovery is often refused where
there is an on-going investigation but once
the investigation and prosecution have been
completed, discovery should be permitted.

In other situations, the investigation may
have long since been completed and no
prosecution contemplated.

The privilege has been generally recognized
for "intra- and inter-agency advisory
opinions submitted for consideration in the
performance of decision and policy-making
functions" and is conditional and will not
prohibit discovery where there is need for
discovery to preclude prejudice and
unfairness.

Such conditional privilege does not apply
to factual reports and summaries.

In some cases, the informer's privilege, the
government's privilege to withhold from
disclosure the identity of persons who
furnish information of violations
of the law, may be applicable.

Such privilege, however, is limited to
voluntary civilian cooperation with
law enforcement agencies.

In United States v. Richard M. Nixon,
President (July 24, 1974), 418 U.S. 683,
42 LW 5237, the U.S. Supreme Court held that
     it is "emphatically the province
     and the duty" of this court "to
     say what the law is" with respect
     to the claim of privilege presented . .
 

     and that "neither the doctrine of
     separation of powers, nor the need for
     confidentiality of high level
     communications, without more, can
     sustain an absolute, unqualified
     presidential privilege from immunity
     from judicial process under all
     circumstances.

     The President's need for complete candor
     and objectivity from advisers calls for
     great deference from the courts.

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

     However, when the privilege depends
     solely on the broad, undifferentiated
     claim of public interest in the
     confidentiality of such conversations, a
     confrontation with other values arises.

     Absent a claim of need to protect
     military, diplomatic or sensitive
     national security secrets, we find it
     difficult to accept the argument that
     even the very important interest in
     confidentiality of presidential
     communications is significantly
     diminished by production of such
     material for in camera inspection with
     all the protection that a district
     court will be obliged to provide. . .

The court ordered the production of the
records sought by subpoena which were
essential to enforcement of criminal
statutes for in camera inspection.

You inquire whether disclosure may be
withheld or limited solely on the ground
that full disclosure would create an
undue administrative burden.

I am of the opinion that it cannot be
absolutely withheld and that it can be
limited only by means of express statute,
reasonable regulations with respect to hours
and procedures to limit unreasonable
interference with the ordinary operations of
the office, and by denial for express stated
reasons subject to limitations of the Youmans
and Beckon v. Emery cases cited above.

You inquire whether the exercise of executive
discretion is subject to review and if so in
what forum and by what standards.

Limited executive privilege must be
recognized as being beyond review as is the
executive's exercise of discretion generally.

See
State ex rel. Warren v. Nusbaum (1973),
59 Wis.2d 391, 450,
108 N.W.2d 780.

Nevertheless, the courts may determine
whether the executive has overstepped the
permissible area in which he may properly
exercise unreviewable discretion.

See
State ex rel. Mueller v. Thompson (1912),
149 Wis. 488, 491, 137 N.W. 20.

Similarly, the courts may determine
whether the claim to executive privilege
is lawfully asserted.

United States v. Nixon (1974), 42 L.W. 5237.

A mandamus action brought in the Dane County
Circuit Court will vest the courts with
power to make these determinations.

See Section 261.01(9), Stats.

I conclude, then, that while the exercise of
executive discretion or executive privilege
is not subject to judicial review, whether
it is properly claimed or asserted is
judicially determinable and the courts
would apply the standards described herein.
 

63 OAG 400   401 403 405 407 409 411 413
             402 404 406 408 410 412 414

RWW:RJV