Juneau County Star-Times v. Juneau County

2011 WI App 150, 807 N.W.2d 655, 337 Wis. 2d 710, 39 Media L. Rep. (BNA) 2753, 2011 Wisc. App. LEXIS 777
CourtCourt of Appeals of Wisconsin
DecidedOctober 27, 2011
DocketNo. 2010AP2313
StatusPublished
Cited by4 cases

This text of 2011 WI App 150 (Juneau County Star-Times v. Juneau County) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Juneau County Star-Times v. Juneau County, 2011 WI App 150, 807 N.W.2d 655, 337 Wis. 2d 710, 39 Media L. Rep. (BNA) 2753, 2011 Wisc. App. LEXIS 777 (Wis. Ct. App. 2011).

Opinion

BLANCHARD, J.

¶ 1. The Juneau County Star-Times, a twice-weekly newspaper, appeals a circuit court judgment dismissing its complaint against Juneau County for relief under the statutes governing public records in Wisconsin, Wis. Stat. §§ 19.31-39 (2009-10).1 The parties dispute whether the "contractors' records" provision, § 19.36(3), applies to invoices [714]*714generated by the County's insurance defense counsel.2 Section 19.36(3) requires disclosure, upon request, of records produced or collected under a contract with a governmental body. The parties also dispute whether information that the County redacted from the invoices is justified by the attorney-client privilege.

¶ 2. The circuit court concluded that Wis. Stat. § 19.36(3) does not apply to the invoices and that, even if it did, the County properly produced the invoices, except as they were necessarily redacted to protect the attorney-client privilege. We conclude: (1) § 19.36(3) applies to the invoices as records collected by the insurer under the contract of insurance, and (2) the County failed to point to evidence sufficient to survive summary judgment on the question of whether its redactions qualify as attorney-client privileged information. Accordingly, we reverse and remand for the circuit court to order the County to make available to the Star-Times unredacted copies of the invoices.

BACKGROUND

¶ 3. The following facts are undisputed. Juneau County was insured by Wisconsin County Mutual Insurance Corporation (the insurer) under a public entity liability policy. It is undisputed for purposes of this appeal that this insurance contract covered the County's defense in disciplinary proceedings relating to an employee of the Juneau County Sheriffs Department.3

[715]*715¶ 4. The insurer retained the Crivello Carlson law firm (the law firm) in October 2008 to defend the County in connection with the disciplinary matter. The law firm, through attorney Michele Ford, generated invoices, that is, itemized bills for legal services, for its defense of the County and provided those invoices to the insurer.

¶ 5. The Star-Times sent a written request to the County, explicitly citing public records statutes, for "access to bills submitted for payment to Juneau County's insurer, the Wisconsin County Mutual Insurance Corp., by Michele Ford, or submitted by her law firm, Crivello Carlson, for services Attorney Ford rendered as counsel to Juneau County Sheriff Brent Ole-son in the years 2008, 2009 and 2010." The law firm provided a response to this request directly to the Star-Times, which consisted of redacted copies of the invoices. The law firm's response stated that all of the redactions were to protect attorney-client privileged information or attorney work product. The County subsequently provided an additional written response to the Star-Times, adopting the law firm's response as its own.

¶ 6. The Star-Times filed a complaint against the County, alleging that the County violated the public records law by, among other things, adopting the redactions made by the law firm and releasing no records or portions of records beyond what the law firm released. Both parties moved for summary judgment. The parties disputed whether the invoices were subject to disclosure as public records under the relevant statutory provisions. In an alternative argument, the Star-Times [716]*716asserted that the County waived or forfeited any argument that the invoices are not public records subject to release under Wis. Stat. ch. 19, because the County failed to take such a position at the time the law firm produced the redacted versions, and in fact adopted the law firm's production as an appropriate response. Finally, as to the redactions themselves, the parties disputed whether, assuming that the invoices were subject to disclosure, the redactions were permissible.

¶ 7. The circuit court resolved each issue in favor of the County and granted summary judgment to the County, resulting in dismissal of the Star-Times' complaint. The Star-Times now appeals.

DISCUSSION

¶ 8. We address two arguments that the Star-Times makes on appeal: (1) the circuit court erred in concluding that the "contractor's records" provision, Wis. Stat. § 19.36(3), does not apply to the invoices; and (2) the circuit court erred in concluding that the County's redactions qualified as attorney-client privileged information.4

[717]*717¶ 9. For the reasons that follow, we agree with the Star-Times' argument that Wis. Stat. § 19.36(3) applies to the invoices. We also conclude that the County failed to identify sufficient proof to survive summary judgment on the question of whether the redacted information in the invoices qualifies as attorney-client privileged.

A. Whether Wis. Stat. § 19.36(3) Applies to the Invoices

¶ 10. The parties do not suggest that there are any conflicting facts or competing reasonable inferences that would have prevented summary judgment on the question of whether Wis. Stat. § 19.36(3) applies to the invoices. We agree and conclude that this issue involves a purely legal question as to the applicability of the statute. The application of a statute to undisputed facts is a question of law that we review de novo. Seifert [718]*718v. School Dist. of Sheboygan Falls, 2007 WI App 207, ¶ 16, 305 Wis. 2d 582, 740 N.W.2d 177.

¶ 11. In addressing this legal question, we begin by observing that, when applying public records law provisions, we must consider the legislature's declared policy that "all persons are entitled to the greatest possible information regarding the affairs of government.. . ." Wis. Stat. § 19.31. "To that end, ss. 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." Id.

¶ 12. A "record" is defined as certain information that "has been created or is being kept by an authority." Wis. Stat. § 19.32(2) (emphasis added). Here, the County is the "authority," and the Star-Times does not argue that the County created or kept the invoices. Rather, as indicated, the Star-Times argues that the "contractors' records" provision, Wis. Stat. § 19.36(3),5 applies.

¶ 13. This brings us to the core provision at issue. Wisconsin Stat. § 19.36(3) states that an authority "shall make available for inspection and copying. . . any record

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2011 WI App 150, 807 N.W.2d 655, 337 Wis. 2d 710, 39 Media L. Rep. (BNA) 2753, 2011 Wisc. App. LEXIS 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/juneau-county-star-times-v-juneau-county-wisctapp-2011.