74 Op. Att'y Gen. 14 (1985)
 
74 OAG 14  15  16  17  18

OPINION NO. OAG 3-85,

Wisconsin Attorney General Opinions

1530 January 1985

Confidential Reports; Public Records;

Relationship between the public records law
and pledges of confidentiality in settlement
agreements discussed.

THOMAS LOFTUS,
Chairperson Committee on
Assembly Organization

The Committee on Assembly Organization has
asked me to address several questions
pertaining to the relationship between
this state's public records law and
a pledge of confidentiality made as
part of a settlement agreement.

You also ask about related rights and
obligations of the Legislative Audit Bureau.

Apparently the questions are prompted by a
recent personnel dispute where the matter
was resolved by settlement with one of the
terms being that all records regarding the
matter would be kept confidential.

The controversy involves the Mid-State
Vocational, Technical and Adult Education
District and one of its employes.

The record custodian involved has declined
to provide access to the records in honor
of the settlement agreement.

You present the following questions

1.   Under what circumstances, if any, may a
     contractual pledge of confidentiality
     authorize an authority under Section
     19.35, Stats., to withhold the
     disclosure of a record?

2.   If the party to whom a contractual
     pledge of confidentiality is made
     rejects the need for confidentiality
     after the contract has been signed,
     may the authority continue to prohibit
     public access to a record?

3.   If the Legislative Audit Bureau were
     directed to conduct an audit of the
     authority in the fact situation
     described above, would the Bureau
     be entitled to review a record of
     the authority otherwise withheld
     from public access?

 
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4.   If the Legislative Audit Bureau were
     entitled to review a record of an
     authority withheld from public
     access and if the Legislative Audit
     Bureau were to obtain a copy of the
     record, would the Bureau be required to
     withhold the record from public access
     or would the Bureau act as a new
     authority for purposes of a record
     request under Section 19.35, Stats.?

Earlier opinions of this office relating to
pledges of confidentiality have acknowledged
that such pledges may constitute an exception
to the right of public access, but the lest
for establishing a valid pledge is demanding:

First,    there must have been a
          clear pledge made.

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

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.

60 Op. Att'y Gen. 284, 289 (1971).

In the settlement situation involved here, I
assume that the pledge of confidentiality is
made to obtain the settlement not to obtain
the underlying information.

Therefore, the second and third elements of
the foregoing test would not be satisfied.

It is my opinion that nondisclosure of the
documents cannot properly be based solely
on the pledge of confidentiality.

The current public records law expressly
embraces prior common law.

Section 19.35(1)(a), Stats.

Under the common law a custodian could
properly deny access to a public record
only if the interests to be protected
by nondisclosure outweigh the general
presumption in favor of public access.

This is called the balancing test.

State ex rel. Youmans v. Owens,
28 Wis.2d 672, 681,
137 N.W.2d 470,
139 N.W.2d 241 (1965).

It is possible that some of the information
involved in a personnel dispute may
properly be kept confidential.

The Legislature has indicated a sensitivity
to personnel related information by the
exemptions to the open meetings law.

Section 19.35(1)(a)
Section 19.35(1)(b)
Section 19.35(1)(c)
Section 19.35(1)(f)

 
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This expression of public policy is also
present in section 230.13, Stats., which
authorizes the State Department of Employment
Relations to keep confidential information
regarding certain personnel matters.

In applying the balancing test
these indications of public policy
would weigh heavily.

Also a possible factor in this case is the
general desirability of resolving
disputes by agreement rather than litigation.

On the other hand, the main purpose of the
public records law is to enable the citizenry
to monitor and evaluate the performance
of public officials and employes.

If information relating to a settlement and
the underlying personnel dispute are kept
confidential, the public is deprived
of this ability.

For this reason the pledge of confidentiality
itself is troublesome because the custodian
making the pledge is purporting to grant an
exception to the public records law.

This is particularly troublesome when the
settlement involves the payment of money by
the government.  The public's interest in
such information is generally great.

It is my opinion that the making of a pledge
of confidentiality as part of a settlement
agreement does not guarantee that the
pledge will be enforced against
a public records request.

In applying the balancing test a court may
take the pledge as an element of a desirable
settlement, and thus the pledge would be just
one of the elements that would be considered
in applying the balancing test.

However, for the pledge to hold up the
custodian must make a showing that there are
independent and adequate bases for supporting
nondisclosure of the requested information.

This is consonant with the fourth
precondition to a valid pledge of
confidentiality cited earlier, i.e.,
that in addition to having made a
pledge the custodian must determine that

     the harm to the public interest that
     would result from permitting inspection
     outweighs the great public interest in
     full inspection of public records.

60 Op. Att'y Gen. at 289.

If such a showing is not made, I believe
the custodian will be found to have
made a pledge that cannot be kept.

Remember:

It is not the trial court's or this court's
role to hypothesize reasons or to consider
reasons for not allowing inspection which
were not asserted by the custodian.

If the custodian gives no reasons or gives
insufficient reasons for withholding a public
record, a writ of mandamus compelling the
production of the records must issue.

 
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Beckon, supra at 518, states,

     There is an absolute right to inspect a
     public document in the absence of
     specifically stated sufficient
     reasons to the contrary.

Newspapers, Inc. v. Breier,
89 Wis.2d 417, 427,
279 N.W.2d 179 (1979).

As to your second question it is my opinion
that a pledge of confidentiality is like a
privilege in that it is specific to the
person in whose favor it is made.

Like a privilege then, a pledge of
confidentiality may be waived.

If waived, the custodian could not
properly continue to use the pledge
as a basis for denying access.

As to your third question, section
13.94(intro.) provides the following
with respect to the pertinent power
of the Legislative Audit Bureau
headed by the state auditor:

     Subject to Section 230.35(4)(a) and (f),
     the state auditor or designated employes
     shall at all times with or without
     notice have access to all departments
     and to any books, records or other
     documents maintained by the departments
     and relating to their expenditures,
     revenues, operations and structure
     except as provided in subsection (4).

The limited exceptions mentioned would have
no bearing here.

The state auditor's right of access to
records is independent of the public records
law. The nature of the state auditor's role
is such that he or she must have access to
all pertinent records including those that
may otherwise be confidential.

It is my opinion that the Legislature
intended the state auditor to have access
to records even though they might not be
available to the public under the public
records law.

This authority extends to records of a
vocational, technical and adult education
district hoard, as involved here,
by virtue of section 13.94(4).

As to your fourth question, the state
auditor's access to an otherwise confidential
record does not change the record's status.

As stated in
57 Op. Att'y Gen. 187, 191 (1968),

     The law seems clear that
     information of a confidential
     nature gained by one administrative
     branch of the government from
     another may be used in preparation
     for proper internal matters,
     but should not be disclosed
     to the public.
 
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BCL:RWL