JOURNAL/SENTINEL v. SHOREWOOD SCHOOL
BD.,
186 Wis.2d 443 (Ct.App. 1994)
521 N.W.2d 165
Journal/Sentinel, Inc.
Bruce Gill,
Michael Bayer and
Lawrence Sussman,
Paintiffs-Respondents,
v.
Shorewood School District Boaard,
Amy Lewis, in her capacity as
Shorewood School Board President.
Court of Appeals # 93-3106.
Oral argument 7/6/94.
Decided 7/19/94
APPEAL from an order of the circuit
court for Milwaukee County:
LAURENCE C. GRAM, JR., Judge. Affirmed.
On behalf of the defendants-appellants,
the
cause was submitted on the briefs
of
Michael J. Morse, Warren L. Kreunen,
and
Brent P. Benrud of von Briesen
& Purtell,
S.C., of Milwaukee.
There was oral argument by Michael
J. Morse.
On behalf of the plaintiffs-respondents,
the cause was submitted on the
briefs of
Dennis L. Fisher of Meissner &
Tierney, S.C.,
of Milwaukee.
There was oral argument by Dennis
L. Fisher.
Before Wedemeyer,
P.J., Sullivan and Fine, JJ.
FINE, J.
This is an appeal from the trial
court's
grant of summary judgment in favor
of the
publisher of Milwaukee's two newspapers
of
general circulation and three of
its
employees, directing the Board
of Directors
of the School District of the Village
of
Shorewood, the board president,
the school
district's acting superintendent,
and the
school board's attorneys to release,
under
Wisconsin's public records law,
Sections
19.31-19.37, STATS., a document
entitled
"Memorandum of Understanding,"
which recited
the settlement terms of a lawsuit
between the
school board and a former superintendent
of
the Shorewood school district.
We affirm.
I.
In November of 1991, the school
district's
superintendent, Lynne Moore, sued
the
district and members of the school
board,
alleging breach of contract and
defamation.
The case was settled and the settlement
was approved by the school board
at
its meeting on August 20, 1992.
A stipulation for "voluntary withdrawal"
of
Moore's action, and an order for
dismissal
was filed in court on August 21,
1992.
Throughout the proceedings, Moore
was
represented by the Milwaukee law
firm
of Shindell and Shindell, and the
district and the school-board members
were represented by the Milwaukee
law firm of von Briesen and Purtell.
Although the settlement agreement
was
ostensibly oral, it was memorialized
by
the "Memorandum of Understanding,"
access
to which is sought by the publisher
and its employees in this lawsuit.
This "Memorandum of Understanding"
is dated
August 20, 1992, and was signed
on behalf of
the defendants in Moore's suit
by Timothy
Dugan, then of the von Briesen
firm, at
the direction of the school board.
It was also signed by Anne Shindell,
one
of Moore's lawyers, on Moore's
behalf.
An original signed copy of the "Memorandum
of
Understanding" is at the von Briesen
firm.
Although copies of the "Memorandum
of
Understanding" were given to each
school
board member on August 20 prior
to the
board's discussion and approval
of the
settlement, the copies were retrieved
from the school-board members
before the meeting ended.
The "Memorandum of Understanding"
is the
final version of a document that,
as
reflected by the appellate record,
went
through twenty drafts by von Briesen
lawyers.
At least some of the drafts were
discussed
with the Shindell firm as part
of the ongoing
settlement negotiations, and were
modified in
accordance with those negotiations.
The final typed version of the "Memorandum
of
Understanding" brought by the von
Briesen
firm to the school-board meeting
on August 20
was itself modified by handwritten
changes as
the result of last-minute negotiations.
There is no doubt from this record
but that
the "Memorandum of Understanding"
played a
significant role in the settlement
process
and is the final document that
reflects
the settlement terms.
Indeed, the then president of the
school
board, Amy Lewis, testified at
her deposition
that she relied on the "Memorandum
of
Understanding" in assessing and
approving the settlement.
Further, in announcing its oral
decision, the
trial court noted that the "Memorandum
of
Understanding" contains the following
language, as read into the record
by
the trial court, immediately preceding
the terms of the agreement:
"The board and Moore
have agreed
for good and
sufficient
consideration
as follows:"
and that the "Memorandum of Understanding"
concludes:
The parties to the settlement have
been
advised by their attorneys of all
the
constituent parts of the settlement
and to
the provisions in this memorandum.
The parties reviewed this memorandum
with
their legal counsel, acknowledge
it is an
accurate and complete representation
of
their settlement, and is binding
upon
them although not personally signed.
The parties have directed their
attorneys as
their authorized agents to execute
this
Memorandum of Understanding in
duplicate
on their behalf and have directed
their
attorneys to file one duplicate
original
in each of their respective
professional offices.
One of settlement's terms was that
the
terms themselves would remain secret.
II.
It is the settled policy in this
state that,
subject to extremely narrow and
well-defined
exceptions, the workings of government
are
open to public scrutiny.
The legislature has consistently
reaffirmed
this fundamental right in various
contexts:
In recognition of the fact that
a
representative government is dependent
upon an informed electorate, it
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 employes [sic]
who represent them.
Section 19.31, STATS. (public records).
In recognition of the fact that
a
representative government of the
American type is dependent upon
an informed
electorate, it is declared to be
the policy
of this state that the public is
entitled to
the fullest and most complete information
regarding the affairs of government
as is
compatible with the conduct of
governmental
business.
Section 19.81(1), STATS. (open meetings).
The sittings of every court shall
be public
and every citizen may freely attend
the same,
except if otherwise expressly provided
by law
on the examination of persons charged
with
crime; provided, that when in any
court a
cause of a scandalous or obscene
nature is on
trial the presiding judge or justice
may
exclude from the room where the
court is
sitting all minors not necessarily
present as parties or witnesses.
Section 757.14, STATS. (court proceedings).
Wisconsin's tradition of openness
in
government reflects the truism,
expressed by
Jeremy Bentham more than one-hundred
and
fifty years ago, that
"without publicity,
all other
checks are insufficient."
1 Jeremy Bentham,
Rationale of Judicial Evidence
524 (1827),
quoted in
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 569 (1980).
This case is governed by the public
records
law, Sections 19.31-19.37, STATS.,
and
the legislatively mandated
"presumption of complete
public access,"
Section 19.31, STATS.;
see also
Oshkosh Northwestern Co.
v. Oshkosh Library Bd.,
125 Wis.2d 480, 482,
373 N.W.2d 459, 461 (Ct. App. 1985).
Although Section 19.31 recognizes
that there
may be circumstances where the
"conduct of
public business" requires that
public access
to the records be denied or restricted,
it commands:
"The denial of public
access generally
is contrary
to the public interest,
and only in
an exceptional case
may access be
denied."
Ibid. [1]
The flat rule is that any person
who seeks
access to "any" public record "has
a right
to inspect" that record, unless
the
law otherwise provides. [2]
The school board appellants recognize
this
policy, but nevertheless contend
that
the "Memorandum of Understanding"
is
protected from disclosure.
We analyze their contentions, which,
because
they present issues of law and
the facts are
not in dispute, we decide de novo.
See
Oshkosh Northwestern,
125 Wis. 2d at 485,
373 N.W.2d at 462. [3]
A.
Whether the "Memorandum of Understanding"
is
a "record" subject to public disclosure.
The public-records law defines "record"
as
"any material on which
. . information is
recorded or
preserved, regardless of
physical form
. . which has been created
or is being
kept by an authority."
Section 19.32(2), STATS. [4]
An "authority" is defined by the
public-records law as, inter alia,
"any state or local
office, elected
official, agency,
board, commission,
committee, council,
department or
public body
corporate and politic
created by constitution,
law,
ordinance, rule
or order."
Section 19.32 (1), STATS. [5]
The school board appellants contend
that the
"Memorandum of Understanding" is
not a
"record," and base this contention
on two
footings: that the "Memorandum
of
Understanding" was neither created
nor
is being kept by an "authority."
Rather, they argue, the "Memorandum
of
Understanding" was drafted largely
by
von Briesen with input from Moore's
counsel,
and point out that the document
is ensconced
in von Briesen's files.
Although von Briesen is a private
law firm,
and not itself an "authority,"
the record is
undisputed that it drafted and
has maintained
custody of the "Memorandum of Understanding"
as attorney for the school board,
which is an
"authority" under the public-records
law.
The school board appellants' argument
thus
resolves to whether a public body
may avoid
the public access mandated by the
public-records law by delegating
both the
record's creation and custody to
an agent.
Posing this question provides its
answer:
It may not.
Indeed, Section 19.36 (3), STATS.,
specifically provides that
access is to be granted to
"any record produced
or collected under
a contract entered
into by the authority
. . to the same
extent as if the record
were maintained
by the authority."
Thus, in
Fox v. Bock,
149 Wis.2d 403,
438 N.W.2d 589 (1989),
the court assumed without discussion
that
a report prepared by a private
consulting
firm at the request of a government
agency
was not excluded from the definition
of
record because the report was neither
prepared directly by the agency
nor
kept in its custody. [6]
The school board appellants argue,
however,
that Section 19.36(3) does not
apply because
von Briesen's contract with the
board was to
provide legal services and not
the
"Memorandum of Understanding."
This attempted distinction is without
merit;
the document was produced during
the course
of von Briesen's representation
of the
district, and was, in effect, the
culmination of that representation.
Furthermore, as we discuss below,
von
Briesen's actions on behalf of
the district
were actions by the district for
the purposes
of the public-records law.
A lawyer retained
by a client is the client's agent
for the purposes of the retention
agreement.
See
Groom v. Professionals Ins. Co.,
179 Wis.2d 241, 250 n.3,
507 N.W.2d 121, 125 n.3 (Ct. App.
1993)
"A party is bound by the
acts of her
lawyer-agent and has
notice of all
facts in the possession
of her attorney.";
See also, e.g.,
Pioneer Inv. v. Brunswick,
507 U.S. ___,
113 S.Ct. 1489, 1499 (1993)
(party chargeable with attorney's
neglect);
Irwin v. Dept. of Veterans Affairs,
498 U.S. 89, 92-93 (1990)
(receipt by attorney of Equal Employment
Opportunity Commission right-to-sue
letter is receipt by client).
Thus, for example, statements made
by
counsel during the course of his
or her
representation of the client are
admissible
against the client at trial under
the federal
version of Rule 908.01 (4)(b)4,
STATS.,
Federal Rules of Evidence 801(d)(2)(D).
[7]
See, e.g.,
Sunkyong Int'l., Inc. v.
Anderson Land & Livestock Co.,
828 F.2d 1245, 1249 n.3 (8th Cir.
1987)
(abandoned or superseded pleading
may be
introduced as the party's admission);
United States v. McKeon,
738 F.2d 26, 30-34 (2d Cir. 1984)
(attorney's
opening statement in first trial
admissible
against client in second trial).
There is no doubt but that the "Memorandum
of
Understanding" would be a "record"
under
the public-records law if it were
either
"created" or "kept" by the school
board,
its officers, or employees.
See Section 19.32 (2), STATS.
Delegating either of those responsibilities
to outside counsel does not thereby
remove the document from the
statute's definition of "record."
Cf.
Upjohn Co. v. United States,
449 U.S. 383, 396 (1981)
(turning otherwise discoverable
documents
over to counsel does not thereby
enrobe them
with an attorney-client privilege).
Indeed, counsel for the school board
appellants admitted on oral argument
that,
absent questions revolving around
the
applicability of an attorney's
lien, the
von Briesen firm would have to
deliver the
"Memorandum of Understanding" to
the law
firm's client, if so requested.
Cf.
Section 19.21(1), STATS.
An officer of a school district
"is the legal custodian
of . . all
property and
things . . the possession
or control of
which the officer or the
officer's deputies
may be lawfully
entitled, as
such officers."
von Briesen's creation and retention
of
custody of the "Memorandum of Understanding"
is attributable to the school board
to the
same extent as if the document
were created
or kept by school board personnel.
It is a "record" subject to disclosure
under the public-records law.
B. Whether the "Memorandum
of Understanding"
is a "draft"
excepted from the mandate
of public disclosure.
Section 19.32(2), STATS., excludes
the
following from the definition of
"record":
"drafts, notes, preliminary
computations
and like materials
prepared for the,
originator's
personal use or prepared
by the originator
in the name of
a person for
whom the originator
is working."
The school board appellants argue
that
the "Memorandum of Understanding"
falls within this category.
We disagree.
The only case in Wisconsin to discuss
what qualifies as a "draft" under
Section 19.32 (2), STATS., is
Fox v. Bock,
149 Wis.2d 403,
438 N.W.2d 589 (1989).
There, a consultant's report commissioned
by the Racine Corporation Counsel's
office
was held not to be a "draft" even
though it
had not been put into final form
when used
by the commissioning agency.
Id.,
149 Wis.2d at 405, 417,
438 N.W.2d at 590, 594.
The key factor in Fox's determination
was
that the agency used the report
for the
purposes for which it was commissioned.
Id.,
149 Wis.2d at 413,
438 N.W.2d at 594.
By the same token, the "Memorandum
of
Understanding" at issue here was
signed by
both the school board's attorney
and the
attorney for Moore, and it was
used by the
school board during the August
20 meeting
at which the settlement was approved.
It was the final document that ratified
the
terms of the oral agreement between
Moore and
the school board settling Moore's
lawsuit,
and recited that it was "an accurate
and
complete representation" of that
settlement.
It was not a "draft" as that term
is
used in the public-records law.
C. Balancing of interests.
The school board appellants argue
that "even if" the public-records
law
applies, a balancing of interests
requires
deference to what their brief calls
the
board's "pledge of confidentiality."
[8]
State ex rel.Youmans v. Owens,
28 Wis.2d 672, 681-682,
137 N.W.2d 470, 474 (1965)
(pledge of confidentiality may preclude
public access) (applying common-law
principles, the vitality of which
is
preserved by Section 19.35(1)(a),
STATS.).
This balancing is a legal issue
that we decide de novo.
Village of Butler v. Cohen,
163 Wis.2d 819, 829,
472 N.W.2d 579, 581 (Ct. App. 1991).
The interests to be balanced are,
on the one
hand, the "harm to the public interest
by
disclosure," and, on the other
hand, "the
public interest in inspection."
Id.,
163 Wis.2d at 829,
472 N.W.2d at 583;
see also
Youmans,
28 Wis.2d at 681-682,
137 N.W.2d at 474-475.
Accordingly, that one or both parties
might prefer that the terms of
the settlement
agreement remain confidential,
or that
confidentiality might serve their
interests,
is not material to our consideration
unless
those factors significantly affect
the public interest.
Thus, Youmans recognized that for
a pledge of
confidentiality to prevent access
to
information given to a government
agency by a
private party, the information
must have been
otherwise not available to the
agency.
See id.,
28 Wis.2d at 681-682,
137 N.W.2d at 474. [9]
See also
60 Op. Att'y Gen. 284, 288-289 (1971)
Access may be denied
"where information
was obtained under
official pledge
of confidentiality,
and where the
information could not
otherwise have
been obtained by the
governmental
agency."
The school board appellants posit
that
a government agency's ability to
throw
a promise of confidentiality into
the
pot of settlement negotiations
might
help expedite the settlement process
and, perhaps, spur settlements
that
might otherwise be impossible.
Thus, according to their argument,
the
ability to shield settlements from
public
scrutiny advances the public interest
because
settlements are in the public interest.
This argument misconstrues the narrow
exception recognized by Youmans.
The focus is on the information
disclosed to
a government agency under a pledge
of
confidentiality not
on collateral matters.
There is nothing in the record here
that
indicates that there is any information
in
the "Memorandum of Understanding"
that would
have been withheld from the school
board,
and not otherwise available to
it, if the
school board had not pledged to
keep the
information secret.
Furthermore, if the school board's
argument
were accepted, public scrutiny
of most if not
all settlement agreements involving
government would be barred "promises
of
confidentiality would then be de
rigueur.
This would effectively end-run the
openness
mandated by Wisconsin's public-records
law,
and the presumption of access.
If a lawsuit cannot be settled unless
its terms are kept secret, the
case
will go to trial, where, absent
special
circumstances, public access is
the rule,
see Section 757.14, STATS. [10]
The presumption that public records
in
Wisconsin are open to the public
is not
outweighed by whatever benefits
may have
accrued to the public as the result
of the
Shorewood district's promise to
Moore that
the terms of the settlement would
not be
disclosed to the public.
Moore's truncated tenure with the
Shorewood school district is obviously
a matter of public concern;
at the very least it reflects on
the
competence of those district officials
and employees who hired Moore,
and on
those who sought to terminate her
employment with the district.
All officers and employees of government
are,
ultimately, responsible to the
citizens, and
those citizens have a right to
hold their
employees accountable for the job
they do.
As the attorney general explained
nearly a decade ago:
The main purpose of
the public records law
is to enable the citizenry
to monitor and
evaluate the performance
of public
officials and employes
[sic].
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.
74 Op. Att'y Gen. 14, 16 (1985).
See also
Youmans,
28 Wis.2d at 685,
137 N.W.2d at 475
(public interest is served by exposing
dereliction in duty by public official).
Further, the settlement of Moore's
suit
obviously involved the expenditure
of
public money either
directly or
indirectly (via insurance coverage).
Taxpayers of a community have the
right to
know how and why their money is
spent.
The public interest is not served
by keeping
the "Memorandum of Understanding"
secret.
D. Attorney-client privilege.
The school board appellants also
claim
that disclosure of the "Memorandum
of
Understanding" would breach the
attorney-client privilege between
the
district and the von Briesen firm.
This argument is without merit.
The privilege applies only to confidential
communications from the client
to the lawyer;
it does not protect communications
from the
lawyer to the client unless disclosure
of the
lawyer-to-client communications
would
directly or indirectly reveal the
substance
of the client's confidential communications
to the lawyer.
2 Jack Weinstein & Margaret
Berger,
WEINSTEIN'S EVIDENCE,
Section 503(b)[03] n. 5
at 503-56 to 503-57 (1991);
In
re Sealed Case,
737 F. 2d 94, 98-99 (D.C. Cir.
1984);
United States v. United Shoe Mach.
Corp.,
89 F. Supp. 357,
358-359 (D. Mass. 1950).
There has been no showing that the
"Memorandum of Understanding" falls
within this rule. [11]
By the Court. Order
affirmed.
[1]
Section 19.31, STATS., provides
in full:
DECLARATION OF POLICY.
In recognition of the fact that
a
representative government is dependent
upon an informed electorate, it
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 employes [sic]
who represent them.
Further, providing persons with
such
information is declared to be an
essential
function of a representative government
and an integral part of the routine
duties
of officers and employes [sic]
whose
responsibility it is to provide
such information.
To that end, Sections 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.
[2]
Section 19.35(1)(a), STATS.,
provides in full:
Except as otherwise provided by
law, any
requester has a right to inspect
any record.
Substantive common law principles
construing
the right to inspect, copy or receive
copies
of records shall remain in effect.
The exemptions to the requirement
of a
governmental body to meet in open
session
under Section 19.85 are indicative
of
public policy, but may be used
as grounds
for denying public access to a
record only
if the authority or legal custodian
under
Section 19.33 makes a specific
demonstration
that there is a need to restrict
public
access at the time that the request
to
inspect or copy the record is made.
A "requester" is "any person who
requests
inspection or copies of a record."
Section 19.32(3), STATS.
[3]
As a preliminary matter, we note
that the
publisher contends that the school
board's
response to the publisher's request
for
access to various records relating
to the
settlement of Moore's lawsuit was
insufficient.
See Section 19.35 (4), STATS.
"If an authority denies a written
request in
whole or in part, the requester
shall receive
from the authority a written statement
of the
reasons for denying the written
request.";
State ex rel. Youmans v. Owens,
28 Wis.2d 672, 682,
137 N.W.2d 470, 475 (1965)
(custodian of record to which public
access
is denied must "state specifically
the
reasons" for the denial)
(applying common-law principles,
the
vitality of which is preserved
by
Section 19.35 (1)(a), STATS.),
opinion modified on other grounds,
28 Wis.2d at 685a,
139 N.W.2d 241 (1966).
We disagree.
A custodian's response that denies
public
access to a record is sufficiently
specific if the response gives
"a public policy reason
that the
record warrants
confidentiality."
Journal/Sentinel, Inc. v. Aagerup,
145 Wis.2d 818, 823,
429 N.W.2d 772, 774 (Ct. App. 1988).
A "detailed analysis" of the record
or of the
reasons why the custodian believes
that
disclosure would not be in the
public
interest, however, is not required.
Ibid.
Here, some of the requested documents
were either produced or did not
exist.
The school board's partial denials
asserted the following grounds:
the documents were not "records"
as
defined by the public-records law,
the documents were protected
by "a pledge of confidentiality,"
the documents were protected by
the
attorney-client privilege and
the work-product doctrine,
the documents were protected by
"balancing the
interest to
the public
to access to
such records
and the harm
to the
public by disclosure."
In connection with this latter reason,
the
school board explained that in
its view, it
was in the public's "best interests"
that the
"documents not be disclosed
because
the matter involves
sensitive personnel
related information
which the legislature
recognizes may
be kept confidential and
the desirability
of resolving disputes
by agreement
rather than litigation."
The school board's reasons were
sufficiently
specific, albeit not legally valid
in
the context of this case.
[4]
Section 19.32(2), STATS., provides
in full:
19.32(2)
"Record" means any
material on which
written, drawn, printed,
spoken, visual
or electromagnetic
information is recorded
or preserved, regardless
of physical form
or characteristics,
which has been created
or is being kept by
an authority.
"Record" includes,
but is not limited to,
handwritten, typed
or printed pages, maps,
charts, photographs,
films, recordings,
tapes (including computer
tapes), computer
printouts and optical
disks.
"Record" does not include
drafts, notes,
preliminary computations
and like
materials prepared
for the originator's
personal use or prepared
by the originator
in the name of a person
for whom the
originator is working;
materials which are
purely the personal
property of the
custodian and have
no relation to his or
her office; materials
to which access is
limited by copyright,
patent or bequest;
and published materials
in the possession
of an authority other
than a public
library which are
available for sale,
or which are available
for inspection
at a public library.
[5]
Section 19.32(1), STATS., provides
in full:
19.32(1) "Authority" means
any of the
following having custody of a record:
a state or local office, elected
official,
agency, board, commission, committee,
council,
department or public body corporate
and
politic created by constitution,
law,
ordinance, rule or order;
a governmental or quasi-governmental
corporation except for the Bradley
center
sports and entertainment corporation
created under Chapter 232;
any public purpose corporation,
as defined in Section 181.79(1);
any court of law;
the assembly or senate;
a nonprofit corporation which receives
more
than 50% of its funds from a county
or a
municipality, as defined in Section
59.001(3), and which provides services
related to public health or safety
to the county or municipality;
a nonprofit corporation operating
an
ice rink which is owned by the
state;
or a formally constituted subunit
of any of the foregoing.
[6]
The court thus rejected an argument
to
the contrary in the amicus brief
submitted
by the Wisconsin Counties Association.
Brief for amicus
Wisconsin Counties Assn. at 4-6,
Fox v. Bock,
149 Wis.2d 403,
438 N.W.2d 589 (1989) (No. 87-1853).
As seen from our discussion of Fox,
below,
the court focussed on whether the
report
was a "draft" as that word is used
in Section 19.32(2), STATS.
[7]
Federal Rules of Evidence
801(d)(2)(D) provides:
"A statement is not
hearsay if . . the
statement is
offered against a party
and is . . a
statement by the party's
agent or servant
concerning a matter
within the scope
of the agency or
employment,
made during the
existence of
the relationship."
[8]
The brief submitted to us by the
school
board appellants argues that "a
clear and
unambiguous pledge of confidentiality
was
made" at Moore's request, and that
Moore's
suit "could not have been settled
. . .
absent the pledge."
The record references given to us
by
the school board appellants as
support
for this assertion are less clear
than the brief implies.
At the first reference, Lewis
testified at her deposition:
"I believe that we
had agreed to
confidentiality
regarding I
may be mistaken."
After an off-the-record discussion,
the publisher's attorney asked
the following question:
"Was the idea of making
the terms
confidential
an idea that was
requested by
Dr. Moore and
her attorney,
or was that
requested by
the School Board?"
Lewis replied:
"By Dr. Moore and her attorney."
At the other record reference, the
school board attorney's deposition
testimony merely states that
"the document signed by the
attorneys"
(presumably the "Memorandum of
Understanding") contained terms
of the
settlement and a confidentiality
agreement.
[9]
Youmans' example was drawn from
City & County of San Francisco
v.
Superior Court,
238 P.2d 581 (1951)
(applying a "public interest" exception
to
the mandate that public records
be
disclosed), where the information
would not
have been given to the government
agency
unless confidentiality was promised.
See id., 238 P.2d at 584.
[10]
There are circumstances where secrecy
serves the public interest.
See, e.g.,
Section 134.90, STATS. (trade secrets);
see also
Section 19.36, STATS.
[11]
The school board appellants have
not
briefed the argument based on the
work-product doctrine.
It is thus abandoned.
See Reiman Assocs. v. R/A Advertising,
102 Wis.2d 305, 306 n.1,
306 N.W.2d 292, 294 n.1 (Ct. App.
1981).
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