WISCONSIN NEWSPRESS v.
SHEBOYGAN FALLS SCHOOL DISTRICT
199 Wis.2d 768 (1996)
546 N.W.2d 143
 
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WISCONSIN NEWSPRESS, INC.,
SANDRA KIMBALL,
PRESS PUBLISHING COMPANY, AND
ROBERT SCHUMACHER, Plaintiffs-Appellants,

v.

SCHOOL DISTRICT OF SHEBOYGAN FALLS AND
ROBERT J. ENGLANDER, Defendants-Respondents.

Supreme Court No. 95-0184

Oral argument 1/10/96  Decided 4/9/1996

 
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                                     Page 773

APPEAL from a judgment of the Circuit Court
for Sheboygan County, John B. Murphy,
Circuit Judge.

Affirmed in part, reversed in part,
and remanded.

For the plaintiffs-appellants there were
sealed briefs (in the court of appeals) by
Robert J. Dreps,
Linda M. Clifford,
James A. Friedman, and
aFollette & Sinykin, Madison
and oral argument by Robert J. Dreps.

For the defendants-respondents there was a
sealed brief (in the court of appeals) by
Pamela A. Johnson, Philip C. Reid and
Cook & Franke, S.C., Milwaukee and
oral argument by Pamela A. Johnson.

ROLAND B. DAY, C.J.

This case is before the court on a petition
to bypass the court of appeals, pursuant to
Wis. Stat. Section (Rule) 809.60 (1993-94).

The plaintiffs-appellants Wisconsin
Newspress, Inc., and Press Publishing Co.
(collectively, "Newspapers") seek review of
a summary judgment denying the Newspapers'
request under the open records law, Wis.
Stat. Sections 19.31-.37 (1993-94), to
release two records of the School District
of Sheboygan Falls ("District") involving
a disciplinary action against a school
district administrator.

 
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The issue in this case is whether all
disciplinary or personnel records of
public employees are exempted
from the open records law.

We conclude that they are not, and reverse
the circuit court's denial of the open
records request on this issue.

We also conclude, however, that one of the
records at issue in this case falls within
the attorney-client privilege and we thus
affirm the circuit court's judgment
denying the release of that record.

During February and March of 1994, the
editors of the Newspapers submitted open
records law requests to the District, asking
for records relating to any disciplinary
actions taken against the District's
administrator, Norman Frakes.

The District released the minutes of several
closed meetings of the Board of Education
of the School District of Sheboygan Falls,
but refused to release any other
documents at that time.

The District listed nine reasons for its
refusal to release the other documents,
and claimed that release

    "would result in disclosure
     of privileged, confidential
     personnel information."

The Newspapers then filed suit in the Circuit
Court for Sheboygan County, seeking
disclosure of the documents.

The circuit court denied their requests,
ruling that this court's decision in

Armada Broadcasting, Inc. v. Stirn,
183 Wis.2d 463,
516 N.W.2d 357 (1994),

created an exception to the open records law
for public employee disciplinary records.

Since the circuit court's judgment,
Mr. Frakes has resigned from his position and
taken a new job in another school district.

 
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The first issue we are to resolve is whether
our decision in Armada exempted public
employee disciplinary or personnel records
from disclosure under the open records law.

This presents a question of law which we
review without deference to the circuit
court's determination.

Teigen v. Jelco of Wis., Inc.,
124 Wis.2d 1, 5,
367 N.W.2d 806 (1985).

This court has long recognized
that the open records law

    "reflects the common law
     principles favoring
     access to public records."

Mayfair Chrysler-Plymouth, Inc. v.
Baldarotta,
162 Wis.2d 142, 155,
469 N.W.2d 638 (1991).

The "Declaration of policy" for
the open records law states:

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 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 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.

Wis. Stat. Section 19.31.

This court has noted:

 
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     The general presumption of our law is
     that public records shall be open to the
     public unless there is a clear statutory
     exception, unless there exists a
     limitation under the common law, or
     unless there is an overriding public
     interest in keeping the public record
     confidential.

Hathaway v. Green Bay Sch. Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682 (1984);

see also

State ex rel. Richards v. Foust,
165 Wis.2d 429, 433,
477 N.W.2d 608 (1991).

The question posed in this case is whether
public employee disciplinary or personnel
records are exempted from the general
presumption of disclosure.

The circuit court ruled that they were,
relying on the following language from
this court's decision in Armada:

[S]everal sections of the Wisconsin statutes
evince a specific legislative policy of
protecting privacy and confidentiality in
employee disciplinary actions.

For example, secs. 19.35(1) and 19.85(1)(b),
19.85(1)(c), and 19.85(1)(f) except from the
open records and open meetings laws records
or meetings dealing with disciplinary
actions against employees.

Armada,
183 Wis.2d at 474.

Section 19.35(1) of the
Wisconsin Statutes provides:

19.35(1)  RIGHT TO INSPECTION.

19.35(1)(a)
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.

 
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Wis. Stat. Section 19.35(1) (1993-94).

The cross-referenced section, Section 19.85,
provides that governmental bodies may
meet in closed session when:

19.85(b)

Considering dismissal, demotion, licensing or
discipline of any public employe . . . or
the investigation of charges
against such person...

19.85(c)

Considering employment, promotion,
compensation or performance evaluation data
of any public employe over which the
governmental body has jurisdiction
or exercises responsibility...

19.85(f)

Considering financial, medical, social or
personal histories or disciplinary data of
specific persons, preliminary consideration
of specific personnel problems or the
investigation of charges against specific
persons except where paragraph 19.85(b)
applies which, if discussed in public,
would be likely to have a substantial
adverse effect upon the reputation of
any person referred to in such histories
or data, or involved in such problems
or investigations.

Wis. Stat. Section 19.85(1) (1993-94).

Interpreting a version of the open records
and open meetings laws enacted prior to the
present Sections 19.35(1)(a) and 19.85(1),
this court had described the "balancing test"
which a record custodian must undertake in
deciding whether to release a record:

We determine that this legislative policy of
not disclosing data which may unduly damage
reputations carries over to the field of
inspection of public records and documents.

The statutory word "unduly" is significant.

 
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As applied to inspection it does not bar all
inspection of public records and documents
that might damage reputations, but requires
a balancing of the interest of the public
to be informed on public matters against
the harm to reputations which would likely
result from permitting inspection.

State ex rel. Youmans v. Owens,
28 Wis.2d 672, 685,
137 N.W.2d 470 (1965);

see also

Wisconsin State Journal v.
University of Wisconsin-Platteville,
160 Wis.2d 31, 40-41 n.3,
465 N.W.2d 266 (Ct.App. 1990)

(applying Youmans)

[hereinafter UW-Platteville].

Cases of both this court and the court of
appeals have applied this balancing test,
now incorporated in Section 19.35(1), in
determining when records should be
released under the open records law.

See, e.g.,

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

balancing test involves determination

    "whether permitting inspection would
     result in harm to the public interest
     which outweighs the legislative policy
     recognizing the public interest in
     allowing inspection.";

Mayfair Chrysler-Plymouth,
162 Wis.2d at 164-65;

Journal/Sentinel, Inc., v.
School Bd. of the School District of
Shorewood,
186 Wis.2d 443, 457,
521 N.W.2d 165 (Ct.App. 1994) [hereinafter
Shorewood].

Courts have also applied the balancing test
to personnel records.

In one such case,
UW-Platteville,
160 Wis.2d at 36-42,
the court of appeals balanced the public
policy expressed in Section 19.31, which
presumes openness and disclosure, against
the public policy expressed in Section 19.85,
which recognizes that the release of certain
personnel records, such as disciplinary
records, could cause harm to the
public or to employees.

After concluding that certain meetings at
issue in the case had been properly closed
under Section 19.85(1)(f) because they
discussed personnel and disciplinary
matters, the court stated,

    "this conclusion, however, does not end
     our inquiry. It does not follow that,
     simply because meetings were properly
     closed under Section 19.85(1)(f),
     Stats., documents compiled in
     conjunction with those meetings
     are exempt from disclosure
     under Section 19.35(1)."

Id. at 38.

 
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The method of analysis applied in
UW-Platteville is consistent with a
common-sense reading of the open records
and open meetings laws.

The plain language of Section 19.35(1)(a)
directs the record custodian to consider the
public policies expressed in Section 19.85,
among which is the expression of a general
public policy against opening disciplinary
or personnel proceedings, when making a
decision whether or not to release a record.

The sections, on their face, do not result in
a "clear statutory exception," see Hathaway,
116 Wis.2d at 397, forbidding the release of
all public employee disciplinary records;
rather, the statutes simply require the
custodian to pay proper heed to the
expressed policies in allowing or
denying public access to a record.

The District, however, points to
three cases of the court of appeals,

Village of Butler v. Cohen,
163 Wis.2d 819,
472 N.W.2d 579 (Ct.App. 1991);

Law Offices of William A. Pangman & Assoc. v.
Stigler,
161 Wis.2d 828,
468 N.W.2d 784 (Ct.App. 1991); and

Law Offices of William A. Pangman & Assoc.,
S.C., v. Zellmer,
163 Wis.2d 1070,
473 N.W.2d 538 (Ct.App. 1991).

The District argues these cases stand for the
proposition that Wisconsin courts have

  "consistently held that public policy
   prohibits disclosure of personnel
   records related to disciplinary actions."

In these cases, the court of appeals did hold
that some personnel records of police
officers should not be released to
attorneys representing criminal defendants;
however, in each case the court of appeals
clearly applied the balancing test
in making its determination.

 
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See

Cohen,
163 Wis.2d at 825;

Stigler, 161 Wis.2d at 840;

Zellmer, 163 Wis.2d at 1080.

The cases do not stand for the proposition
that there is a blanket exception for
personnel records under the open records law.

Rather, the balancing test must be applied

"on a case-by-case basis."

Stigler, 161 Wis.2d at 840.

The rule from these and the rest of this
court's cases is that the balancing test
must be applied in every case in order
to determine whether a particular record
should be released, and there are no
blanket exceptions other than those
provided by the common law or statute.

See

Youmans, 28 Wis.2d at 682

    "We deem it unwise to attempt to catalog
     the situations in which harm to the
     public interest would justify refusal
     to permit inspection. It is a subject
     which had best be left to case-by-case
     decision.";

Hathaway, 116 Wis.2d at 397.

In fact, Armada, the case on which the
circuit court relied in the present matter in
ruling that personnel records are excepted
from the open records law, ultimately
endorsed the application of the balancing
test to the records at issue in the case.

In Armada, a public employee sought to
intervene in an open records law action
filed against his employer.

Armada, 183 Wis.2d at 467.

The action sought the release of an
investigative report in which the
employee was a subject. Id.

This court held that the employee did have
a legally protected interest in the action,
and a right to intervene.

Id. at 475.

The court noted, however, that its review was
limited to the issue of intervention:

    "The issue before us does not
     involve a determination under
     the Open Records law.

     We do not decide whether the
     investigative report should be
     disclosed to the public."

Id. at 473.

 
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In fact, the Armada court remanded
the case to the circuit court.

Id. at 477.

If there were a blanket exception for public
employee records, such a remand would
not have been necessary.

Thus, to be consistent with the case itself,
the statutory language of the open records
law, and the many cases discussed above which
require a case-by-case application of the
balancing test, the language from Armada on
which the circuit court in the present matter
relied should be clarified to the extent that
it may be read as creating a blanket
exception for disciplinary records.

The statement in Armada that

    "Sections 19.35(1)(a) and 19.85(1)(b),
     19.85(1)(c), and 19.85(1)(f), except
     from the open records and open meetings
     laws records or meetings dealing with
     disciplinary actions against employees"

was noting the general public policy, as
shown in the statutes, against releasing
disciplinary or personnel records.

This policy is to be weighed in the balancing
test, but it does not automatically require
that such records cannot be disclosed.

Instead, the public policies favoring
disclosure, including the presumption of
openness as described in Section 19.31, are
weighed against any policies favoring keeping
the records from public view.

See, e.g.,

Newspapers, Inc.,
89 Wis.2d at 427;

Mayfair Chrysler-Plymouth,
162 Wis. 2d at 164-71;

Shorewood,
186 Wis.2d at 457-59.

The Armada court, by its language noting the
public policies disfavoring the disclosure of
disciplinary records, did not create an
exception to this established methodology of
the balancing test.

Having determined that there is no blanket
exception under the open records law for
public employee disciplinary or personnel
records, the next question is did the
District properly deny access to the
reords at issue in this case.

 
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This presents a question of law which we
review without deference to the courts below.

Mayfair Chrysler-Plymouth,
162 Wis.2d at 154-55.

These records consist of two documents.[1]

The first document is a letter from the
District's attorney to the District.

For convenience, we will refer to this
document as the "attorney letter."

The second document is a letter from the
District to Mr. Frakes, which describes the
sanctions imposed as a result of the
disciplinary actions taken against him.

We will refer to this document
as the "District letter."

The District argues that the attorney letter
is protected by the attorney-client
privilege.

See Wis. Stat. Section 905.03 (1993-94).[2]

As we have already noted, exceptions to
disclosure created under the common law
or by statute still apply under the
open records law.

See Wis. Stat. Section 19.35(1)(a);

Hathaway,
116 Wis.2d at 397.

The District argues that release of
the attorney letter would disclose
confidential communications between
the District and its attorney.

Our review of the attorney letter
shows that the District is correct.

Although the Newspapers only seek the
disclosure of a portion of the letter,
the release of such portion of the attorney
letter would reveal information protected by
the attorney-client privilege.

 
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The Newspapers argue that the attorney-client
privilege generally does not apply to
communications from the lawyer to the client,
citing Shorewood, 186 Wis.2d at 460.

However, an exception is where disclosure of
the communication would indirectly reveal the
substance of the District's confidential
communications to its lawyer.

Id.

We conclude that such an indirect revelation
would occur in this case.

The Newspapers also contend that the
attorney-client privilege should not apply in
this case because the privilege only extends
to confidential communications which are not
intended to be disclosed to third persons.

Section 905.03(1)(d) provides:

a communication is "confidential" if not
intended to be disclosed to third persons
other than those to whom disclosure is in
furtherance of the rendition of professional
legal services to the client. . . .

The record shows that the contested portions
of the letter were discussed with Mr. Frakes.

However, the record also shows that the
contents of the attorney letter were not
disclosed to anyone other than the members
of the school board and Mr. Frakes.

We conclude that the disclosure of the
contested portion of the letter to Mr. Frakes
was in furtherance of the rendition of
professional legal services to the District.

We therefore affirm the portion of the
circuit court's judgment withholding
the attorney letter.[3]

 
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For the remaining document, the District
letter, we must still apply the open records
law balancing test to determine whether
the record should be released.

Because the application of the balancing test
presents a question solely of law, we may
perform the test on review even if the
circuit court did not apply the test.

See Cohen, 163 Wis.2d at 823 n.1.

We follow a two-step procedure in
reviewing open records cases:

First, we must decide if the trial court
correctly assessed whether the custodian's
denial of access was made with the
requisite specificity.

Second, we determine whether the stated
reasons are sufficient to permit withholding,
itself a two-step analysis.

Here, our inquiry is:

(1)  did the trial court make a factual
     determination supported by the record
     of whether the documents implicate the
     public interests in secrecy asserted by
     the custodians and, if so,

(2)  do the countervailing interests outweigh
     the public interest in release.

Milwaukee Journal v. Call,
153 Wis.2d 313, 317,
450 N.W.2d 515 (Ct.App. 1989)
(citations omitted)

(quoted in Mayfair Chrysler-Plymouth,
162 Wis.2d at 157).

There is no dispute over specificity in the
present case; the parties agree that the
District stated its reasons for denial with
sufficient specificity in its letters
responding to the Newspaper's open records
requests, each of which provided nine
reasons for withholding the records.

As the District argues in its briefs before
this court, its reasons for withholding
the documents in question boil down
to the fact that they contain

    "information regarding employee
     performance and other sensitive
     personnel information."

Our review of the records at issue in this
case supports the circuit court's finding,
implicit in its decision that Armada excepted
personnel records from the open records law,
that the records contain such personnel
information.

 
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We therefore turn to the final step of our
analysis under Call: whether the interests
asserted by the District would cause harm
to the public interest which would outweigh
the public interest in release.

Call,
153 Wis.2d at 317;

see also

Youmans,
28 Wis.2d at 681-82.

The District first points to
Cohen,
163 Wis.2d at 819;

Stigler,
161 Wis.2d at 828; and

Zellmer,
163 Wis.2d at 1070,

as examples of cases favoring the
withholding of personnel files.

These cases note several public policies
against disclosure of such records, including
protecting the reputation of individuals, see
Cohen at 829-30, encouraging open and honest
evaluations by supervisors, see id. at 831,
and avoiding loss of morale or causing public
employees to choose other employment because
of the possible disclosure of personnel
records, see

Zellmer,
163 Wis.2d at 1083, 1089.

These cases note, as we have already observed
in this opinion, that personnel records may
contain sensitive information which might
have harmful effects on the public if
released.

This is a factor properly weighed in the
balancing test, and we take it into account
in the present case.

We also note, however, that the application
of the balancing test in the three cases
cited by the District involved factors
peculiar to law enforcement.

See, e.g.,

Zellmer,
163 Wis.2d at 1087, 1089

(disclosure of personnel records would have
"chilling effect" on law enforcement because
officers might make fewer arrests if they
knew their personnel files "might be made
public as a result of arrest");

Cohen,
163 Wis.2d at 831

(possibility of cross-examination on
matters in personnel records might
impair police officer's ability or
willingness to testify in court);

Stigler,
161 Wis.2d at 840 (release of records would
endanger officer engaged in undercover work).

 
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The cases thus provide less support for
withholding the records in the present
matter, where such interests are not
implicated.

Against the interests asserted by the
District, we consider the public
policies favoring disclosure.

In this case, we find that these policies, as
described below, weigh in favor of allowing
the release of the District letter.

First, as stated in the declaration of policy
to the open records law, Wis. Stat. Section
19.31, is the general public policy that

    "all persons are entitled to the greatest
     possible information regarding the
     affairs of government and the official
     acts of those officers and employes who
     represent them. . . . The denial of
     public access generally is contrary to
     the public interest, and only in an
     exceptional case may access be denied."

See also

Breier,
89 Wis.2d at 433-34

Open records law

    "reflects a basic tenet of the
     democratic system   that the
     electorate must be informed
     of the workings of government."

The public has a particularly strong interest
in being informed about public officials who
have been "derelict in [their] duty."

Youmans, 28 Wis.2d at 685;

see also Shorewood,
186 Wis.2d at 459 citing
74 Op. Att'y Gen. 14, 16 (Wis. 1985).

When exposing such misconduct,

    "the fact that reputations may be damaged
     would not outweigh the benefit to the
     public interest in obtaining
     inspection."

Youmans, 28 Wis.2d at 685.

In the present matter, therefore, although
release of disciplinary records might cause
some reputational harm to Mr. Frakes, the
subject of the records, we may nonetheless
consider the public's interest in information
about misconduct by public officials to weigh
more heavily in the balancing of interests.

 
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In addition, our courts have recognized that
a prominent public official, or an official
in a position of authority, should have a
lower expectation of privacy regarding
his or her employment records.

In

State ex rel. Bilder v. Township of Delavan,
112 Wis.2d 539, 557,
334 N.W.2d 252 (1983),

this court allowed access to a
police chief's files, noting that

    "the documents in issue apparently
     contain information relating directly
     to the police chief's professional
     conduct . . By accepting his public
     position [the police chief] has,
     to a large extent, relinquished
     his right to keep confidential
     activities directly relating
     to his employment as a public
     law enforcement official."

Similarly, in

UW-Platteville,
160 Wis.2d at 41,

the court of appeals noted, in its
application of the balancing test in an
open records case, that the dean of a
department at a state university, in taking
his position "of public prominence," had
"little reasonable expectation of privacy
regarding his professional conduct."

In the matter presently before the court, we
note that Mr. Frakes was the administrator of
the school district, a position which
elevated him to the view of the public; we
thus, in our application of the balancing
test, assign less weight to his personal
expectation of privacy regarding activities
related to his employment.

The court of appeals in UW-Platteville also
noted another factor relevant to
our analysis in this matter.

Discussing the possible harm to the
reputation of the subject of a disciplinary
action, the court stated:

In addition, the dangers of harm to
reputation which might have justified
nondisclosure during an investigation
are no longer present once the
investigation is complete.

 
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While an investigation is continuing,
the subject may suffer adverse reputational
harm, whether warranted or not, simply
because of the stigma that attaches
as a result of being the

     "subject of an investigation."

Once the investigation is complete,
however, the danger of warrantless
harm to reputation is reduced.
 

UW-Platteville, 160 Wis.2d at 42.

In the present matter, the disciplinary
action against Mr. Frakes has been completed,
and there would be no danger of creating
false impressions by now releasing the
results of the disciplinary action in
the form of the sanctions imposed.

The District argues that the reasoning from
UW-Platteville should only apply when the
subject of the investigation is cleared of
wrongdoing, as was the subject in that case.

See id.

Making such a distinction would be erroneous.

Whether or not a person has been cleared of
the charges against him or her, the
completion of the investigation
removes the danger warned
against in UW-Platteville:

     that a subject of investigation might be
     stigmatized simply for being under
     investigation.

And, as we have already stated, we are to
give greater weight to the public's interest
in knowing the disciplinary results of
conduct of its public officials than
to the possible harm to a particular
official's reputation.

Having balanced the public policies favoring
disclosure in this case, we conclude that
they outweigh the general public policy
against releasing this type of employee
personnel record, and thus we allow the
disclosure of the District letter.

Now that the investigation has concluded, the
public has a right to know its results.

We therefore reverse that portion of the
circuit court's judgment which denied access
to the District letter and remand to the
circuit court so that it may order the
document's release.

 
199 Wis.2d 768  773 776 779 782 785 788
                774 777 780 783 786 789
                775 778 781 784 787 790

By the Court.   The decision of the circuit
court is affirmed in part and reversed in
part, and the cause remanded for further
proceedings not inconsistent with this
opinion.

FOOTNOTE SECTION:

[1]

Pursuant to the circuit court's order, both
documents were placed in the record for this
case and the record was sealed.

We were thus able to review the documents in
reaching our decision.

[2]

Wis. Stat. Section 905.03 provides in part:
 

905.03(2) GENERAL RULE OF PRIVILEGE.

A client has a privilege to refuse to
disclose and to prevent any other person from
disclosing confidential communications made
for the purpose of facilitating the rendition
of professional legal services to the client.
. . .

[3]

Because we conclude that the document in
question falls under the attorney-client
privilege, we do not reach the District's
argument that it is also privileged as
attorney work product.

See

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

 
199 Wis.2d 768  773 776 779 782 785 788
                774 777 780 783 786 789
                775 778 781 784 787 790