State v. Beaver Dam Area Development Corp.

2008 WI 90, 752 N.W.2d 295, 312 Wis. 2d 84, 2008 Wisc. LEXIS 339

• Court: Wisconsin Supreme Court
• Decided: July 11, 2008
• Docket: 2006AP662
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 1. Preserving an open government and promoting economic development represent two defining principles which we value as a people and strive to accomplish as a state. This case represents the intersection of these two principles.

¶ 2. The legislature has declared that we are dedicated to preserving an open and transparent government. "[I]t 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."¹ Additionally, the legislature has declared that we are committed to promoting economic development. We must "foster the growth and diversification of the economy of the state"² so that Wisconsin is "an attractive place to live and work . . . ."³

¶ 3. We are presented with the question of whether the Beaver Dam Area Development Corporation (BDADC) is a "quasi-governmental corporation" which is subject to Wisconsin's open meetings and public records laws. In addressing the question, we must interpret provisions of the state's open meetings and public records statutes and apply those provisions so that the legislative directives can be fulfilled and the two principles may best coexist.

¶ 4. On one hand we cannot countenance a government body circumventing the legislative directive for an open and transparent government by paying an entity to perform a governmental function. On the other hand, we have to be cognizant of the realities of economic development and the need, at times, for flexibility and confidentiality.

¶ 5. This opinion should not be read as disfavoring the desire to engage in economic development without being subject to open meetings and public records law. Indeed many private entities operate throughout this state without being subject to those laws and successfully promote economic development to the benefit of us all.

¶ 6. Likewise, there are many governmental economic development corporations that have for years operated successfully while being subject to the open meetings and public records laws. We take no position as to what is the best structure for the enhancement of economic development in a particular area.

¶ 7. Rather, this opinion should be read as setting forth the circumstances when an entity so resembles a governmental corporation, that it is treated as a quasi-governmental corporation for purposes of open meetings and public records laws. If an entity does not want to be subject to the open meetings and public records laws, then it should change the circumstances under which it operates.

¶ 8. Each case has to be decided on the particular facts presented. We must examine the totality of circumstances. There is no one factor which is outcome determinative. Today we set forth some of the factors to be examined in determining what constitutes a "quasi-governmental corporation" subject to open meetings and public records laws.

¶ 9. We determine that an entity is a quasi-governmental corporation within the meaning of Wis. Stat. §§ 19.82(1) and 19.32(1) if, based on the totality of circumstances, it resembles a governmental corporation in function, effect, or status. Such a determination requires a case-by-case analysis. Considering the facts of this case we conclude that BDADC is a quasi-governmental corporation subject to open meetings and public records laws.

¶ 10. A primary consideration in reaching our conclusion is that BDADC is funded exclusively by public tax dollars or interest on those tax dollars. Additionally, we consider that at the time the complaint was filed, its office was located in the City of Beaver Dam ("City") municipal building and it was listed on the City website, with a web address of http://www.cityof beaverdam.com/EconomicDept/index.cfm. The City provided BDADC with clerical support and all of its office supplies, including paper, pencils, and postage.

¶ 11. Under the terms of an agreement, all of BDADC's assets revert to the City if it ceased to exist. It is obligated to open its books for City inspection and it has to submit its annual management plan to the City. The mayor and another City official serve on its board of directors. BDADC has no clients other than the City. Its exclusive function is to promote economic development in and around the City, a function that prior to its creation had been performed by the City.

¶ 12. We apply our determination prospectively such that the defendants in the present case are not subject to forfeitures for past violations of the open meetings laws⁴ and we decline to void any actions taken at past meetings not open to the public. Accordingly, we reverse the circuit court and remand to the circuit court to address the remaining request for attorney fees and costs and to enter judgment consistent with this opinion.

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¶ 13. This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (2005-06). The plaintiff, State of Wisconsin, asserts that the circuit court erred in dismissing the State's complaint.⁵ The State seeks declaratory judgment that the Beaver Dam Area Development Corporation (BDADC) is a "quasi-governmental corporation" subject to Wisconsin's open meetings and public records laws. The complaint also seeks forfeitures against BDADC and individual defendants for violations of open meetings laws, and requests that we void action taken at past BDADC meetings and award attorney fees and costs. The case involves no specific requests for records.

¶ 14. The background facts of this case are not in dispute. The circuit court set forth most of these facts in its Findings of Fact, Conclusions of Law and Order for Judgment. We reference additional facts as necessary.

¶ 15. BDADC is a nonprofit corporation organized under Wisconsin law in January 1997. It was not created by any constitution, statute, or ordinance, and the City did not through any of its officers incorporate BDADC. The bylaws of BDADC state that its exclusive purpose is to engage in economic development and business retention within the corporate limits and lands that could become part of the corporate limits of the City.

¶ 16. The officers of BDADC are private individuals who are elected by the BDADC board of directors. Under BDADC bylaws, the president of the City's chamber of commerce is a non-voting member of the board of directors. The mayor of the City and chairperson of the City Community Development Committee serve on the BDADC board by virtue of their positions as City officials and not in their capacity as private citizens. The other ten members of the board of directors are private citizens.

¶ 17. When a director's term at BDADC ends, the board of directors elects a replacement. The City does not direct this process, except insofar as the mayor and chair of the City Community Development Committee serve as ex officio members of the board of directors.

¶ 18. Up to the time this litigation commenced, BDADC has had only one paid employee, the executive vice president, who is appointed by the BDADC board of directors. Trent Campbell served in this position from April 1997 to January 2005. Prior to BDADC's incorporation, the City had an economic development office, which Campbell directed. He left his job as director of the economic development office and became executive vice president of BDADC.

¶ 19. Until May 2005, BDADC's offices were in the City's municipal building, though it conducted no meetings in City facilities. From the time of BDADC's inception until the start of this litigation, the City included BDADC on the City's website at the web address of http://www.cityofbeaverdam.com/Economic Dept/index.cfm.

¶ 20. BDADC and the City entered into cooperation agreements in April 1997 and January 2004. The City agreed that it will provide BDADC with office space, clerical support, copy and fax machine use, telephone use, and postage. The agreements provided that City representatives may examine BDADC's accounting records and finances, and that the City may make funds available to BDADC for economic development.

¶ 21. Under the first cooperation agreement, the City agreed to pay BDADC an annual contribution and to allocate a large percentage of the proceeds from its room tax to BDADC. Under the second cooperation agreement, the City agreed to pay BDADC 90 percent of the City's room tax proceeds and no annual contribution. BDADC's income for the relevant time period consisted entirely of the room tax money or interest on the room tax money. In the first half of 2005, for example, the room tax contribution Accounted for about 84 percent of BDADC's income. The rest of its income was from interest.

¶ 22. The 2004 agreement provides that BDADC must submit its annual management plan to the City. The 2005 plan allows that BDADC may negotiate financial incentives for businesses and work on dealing with infrastructure and government approval issues related to attracting business to the area.

¶ 23. Under BDADC's articles of incorporation, upon BDADC's dissolution or liquidation, any remaining assets shall be distributed to the City and used for economic development and business retention. BDADC cannot bind the City to contracts, and recommendations by BDADC are considered and acted upon by the City under the requirements of state open meetings and public records law. The City has been BDADC's sole client for the time relevant to the case, and BDADC does not have other ongoing business relationships with other clients.

¶ 24. In 2004 and 2005, BDADC negotiated on the City's behalf regarding potential developments by a variety of businesses. BDADC entered into a memorandum of understanding with the Wal-mart corporation regarding developing a distribution center in the area. The topics of discussion included utilities and fire protection, and the memorandum provided that the City would make site improvements. While the mayor is the signatory of the agreement, BDADC was the negotiator.

¶ 25. In late 2004, the State filed a complaint seeking declaratory judgment that BDADC is a quasi-governmental corporation and subject to the State's open meetings laws and public records laws, and alleging that BDADC convened on various occasions in violation of the open meetings laws. It further alleged violations of open meetings laws by several individuals.

¶ 26. The circuit court determined that the BDADC is not a quasi-governmental corporation and entered judgment in favor of BDADC, dismissing the State's complaint. The State appealed and the court of appeals requested certification.

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¶ 27. This is a case of first impression. The central issue in this case is whether BDADC is a quasi-governmental corporation within the meaning of Wisconsin's open meetings and public records statutes.

¶ 28. Determining whether BDADC is a quasi-governmental corporation requires that we interpret provisions of the state's open meetings and public records statutes and apply our interpretation to undisputed facts. Statutory interpretation presents questions of law that we review independently of the determinations rendered by the circuit court. State ex rel. Buswell v. Tomah Area School District, 2007 WI 71, ¶ 10, 301 Wis. 2d 178, 732 N.W.2d 804.

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¶ 29. In determining whether BDADC is a quasi-governmental corporation, we examine first the language of the statutes. Wisconsin's open meetings laws apply to governmental bodies,⁶ defined as follows:

(1) "Governmental body" means a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a local exposition district under subch. II of ch. 229; a family care district under s. 46.2895; a nonprofit corporation operating the Olympic ice training center under s. 42.11 (3); or a formally constituted subunit of any of the foregoing....

Wis. Stat. § 19.82(1) (emphasis added).

¶ 30. The state public records laws apply to authorities.⁷ Wisconsin Stat. § 19.32(1) defines "authority" to include quasi-governmental corporations:

As used in ss. 19.33 to 19.39:

(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 ....

(Emphasis added.)

¶ 31. "Quasi-governmental corporation" is defined in neither the statutes nor the case law interpreting the statutes. However, focusing strictly on the words chosen by the legislature, it is clear that "quasi-governmental corporation" means something other than a governmental corporation. Interpreting quasi-governmental corporation to include only governmental entities would render the term superfluous, contrary to the basic principle that we interpret statutes so as to avoid rendering language superfluous. State v. Harenda Enterprises, Inc., 2008 WI 16, ¶ 54, 307 Wis. 2d 604, 746 N.W.2d 25; Hutson v. State Pers. Comm'n, 2003 WI 97, ¶ 49, 263 Wis. 2d 612, 665 N.W.2d 212.

¶ 32. Examining the vernacular understanding of "quasi" aids our analysis: "Having a likeness to something; resembling." American Heritage Dictionary of the English Language, 1482 (3rd ed. 1992). Employing such understanding here, a quasi-governmental corporation would refer to an entity that has a likeness to or resembles a governmental corporation, but which is not a governmental corporation.

¶ 33. The history of the open meetings and public records statutes provides further guidance. The term "quasi-governmental corporation" was introduced into Wisconsin's open meetings law in 1976, when Wis. Stat. § 66.77 (1973-74) was repealed and replaced by §§ 19.81-19.98.⁸ Section 66.77 provided that open meetings laws applied to a "governmental body" and included "municipal or quasi-municipal corporation[s]" within the definition of governmental body. Wis. Stat. § 66.77(2)(c)(1973-74). When the statute was replaced, the legislature discarded "municipal or quasi-municipal corporation" in favor of "governmental or quasi-governmental corporation." Chapter 476, Law of Wisconsin 1975.

¶ 34. By changing the language, the legislature expanded the reach of the open meetings law. The import of this expansion is described by a leading treatise on municipal law. It explains that quasi-municipal corporations are those corporations that resemble a municipal corporation in some respect and which are public:

["Quasi-municipal corporation"] denotes a corporation created or authorized by the legislature that is merely a public agency endowed with such of the attributes of a municipality as may be necessary in the performance of its limited objective. In other words, a quasi-municipal corporation is a public agency created or authorized by the legislature to aid the state ....

"Quasi-municipal" corporations are public in nature, hut not, strictly speaking, municipal corporations.

Eugene McQuillen, Municipal Corporations § 2.13 (3rd ed. Rev. 1987 & Supp. 1990).

¶ 35. In contrast, the treatise explains that "quasi-public corporation" refers to an entity that "is not per se public or governmental.... But 'quasi' indicates that the private corporation has some resemblance to a public corporation in function, effect or status." Id. Likewise, a quasi-governmental corporation is one that is not per se governmental, but resembles a governmental corporation in function, effect, or status.

¶ 36. Thus, prior to the creation of §§ 19.82-19.98, Wisconsin's open meetings law applied only to entities that were, strictly speaking, public. However, by changing the language of the open meetings statutes, the legislature expanded the law to apply to entities that are not per se public.

¶ 37. As noted, neither this court nor the court of appeals has interpreted "quasi-governmental corporation" within the meaning of §§ 19.82(1) and 19.32(1). However, the state attorney general has written several opinions on the issue.⁹ Opinions of the attorney general are not binding as precedent, but they may be persuasive as to the meaning of statutes. State v. Wachsmuth, 73 Wis. 2d 318, 323, 243 N.W.2d 410 (1976). The legislature has expressly charged the state attorney general with interpreting the open meetings and public records statutes, and provided that "[a]ny person may request advice from the attorney general as to the applicability" of the laws. Wis. Stat. §§ 19.98 and 19.39. Thus the interpretation advanced by the attorney general is of particular importance here.

¶ 38. The most extensive analysis of the issue is found in a 1991 opinion regarding whether the Milwaukee Economic Development Corporation ("Development Corporation") and the Metropolitan Milwaukee Enterprise Corporation ("Enterprise Corporation") were quasi-governmental corporations within the meaning of § 19.82(1) of the open meetings statutes. 80 Op. Att'y Gen. 129 (1991). The Development Corporation articles of incorporation stated that its purpose was to "further the economic development" and "to promote job creation" in the Milwaukee area. Under the Development Corporation's bylaws, four of its nine directors were filled by specified city officials and four of its six officers "may be selected by the city."

¶ 39. The Enterprise Corporation provided economic development loans with money received from the city via federal small business loans. Its articles of incorporation provided for fourteen directors, none of which were reserved for city officials or personnel. Two directors, however, were members of the city council and one was a city employee.

¶ 40. Both the Development Corporation and the Enterprise Corporation listed the Department of City Development as their principal address, located all of their offices in city-owned buildings, and received from the city office space, equipment, and supplies. As with the Development Corporation, the Enterprise Corporation's bylaws allow that the city could select four officers pursuant to a contract between it and the city.

¶ 41. In analyzing whether the two entities were quasi-governmental corporations, the attorney general opined that a quasi-governmental corporation must resemble a governmental corporation. It found support for its view in the treatise cited above, explaining that a " 'quasi-public [or quasi-governmental] corporation’ is not per se public or governmental.... [and] has some resemblance to a public corporation in function, effect or status." 80 Op. Att'y Gen. at 135 (quoting McQuillian, § 2.13 (3rd ed. Rev. 1987 & Supp. 1990) (brackets in 80 Op. Att'y Gen. 129)). The attorney general explained that determining whether an entity closely enough resembles a public corporation to be considered quasi-governmental requires a case-by-case analysis made in light of the totality of circumstances. 80 Op. Att'y Gen. at 136.

¶ 42. Applying such an analysis, the attorney general considered the facts that both corporations served the public purpose of promoting economic development, received most of their funding from public sources, used the city's development department as their principal places of business, were housed in city-owned buildings, and used city equipment and supplies. In addition, it reasoned that the corporations were subject to control by the city insofar as four of the Development Corporation's nine directors served by virtue of being city officials, and the city selected four officers in both of the corporations.

¶ 43. In light of these facts, the attorney general determined that the corporations were quasi-governmental corporations because they resembled a governmental corporation. Thus, it concluded that they were subject to state open meetings laws.

¶ 44. Based upon the statutory language, principles of statutory construction, the history of Wisconsin's open meetings and public records laws, and the interpretations of the Attorney General, we determine that quasi-governmental corporations are not limited to corporations created by acts of the government. Rather, a quasi-governmental corporation is a corporation that resembles a governmental corporation.

¶ 45. However, merely superficial resemblance to governmental corporations in a single respect is insufficient for an entity to be subject to open meetings and public records laws. Rather, a determination that an entity resembles a governmental corporation such that it is subject to state open meetings and public records laws requires an examination of the totality of facts about the entity. Thus, determining whether any particular entity resembles a governmental corporation must be done on a case-by-case basis.¹⁰

IV

¶ 46. Although the parties essentially agree that analyzing the totality of circumstances is a proper approach, they disagree on the application of the approach to the present case.¹¹ BDADC contends that under the totality of the circumstances approach set forth in 80 Op. Att'y Gen. 129 it does not resemble a governmental corporation. It concedes that, like the Milwaukee Economic Development Corporation and the Metropolitan Milwaukee Enterprise Corporation, BDADC receives the vast majority of its funding from public sources. However, it maintains that public funding is the only way in which BDADC is similar to the corporations in 80 Att'y Gen. 129.

¶ 47. It notes that, unlike the Development Corporation and the Enterprise Corporation, all of BDADC's officers are private individuals, and that most of its directors are private citizens. Further, BDADC's only full-time employee is appointed by the board and is not an employee of the City. It also points to the fact that although the BDADC had offices in the City municipal building, and although the City was obligated to provide office space under the cooperation agreement, its meetings were not held at municipal facilities.

¶ 48. Finally, BDADC argues that unlike the Development Corporation and Enterprise Corporation, its relationship with the City was cooperative, and not controlled by the City. For example, both cooperation agreements between the City and BDADC state that BDADC is not a governmental body. Further, BDADC cannot bind the City or enter into a contract on behalf of the City.

¶ 49. The question before us, however, is not whether BDADC resembles the corporations in 80 Att'y Gen. 129. Rather, it is whether BDADC resembles a governmental corporation based on the totality of the circumstances. In answering that question, we draw on several sources in addition to the attorney general opinion discussed above.

¶ 50. Although the determination of whether an entity is subject to open meetings and public records laws depends on the respective statutory language of each state, the interpretations rendered by courts in other jurisdictions are instructive. We initially examine the determinations rendered by the highest state court in three jurisdictions, Maryland, New York, and Florida.¹²

¶ 51. The Court of Appeals of Maryland recently addressed whether state open meetings and public records laws applied to an economic development corporation in City of Baltimore Dev. Corp. v. Carmel Realty Assocs., 910 A.2d 406 (Md. 2006). The development corporation held meetings and voted to recommend for final approval by the mayor a primary developer for a large city project. The realtors filed suit, alleging that the development corporation was a public body subject to open meetings laws and an instrumentality of the City of Baltimore subject to public records laws. Id. at 415.

¶ 52. In considering the nature of public bodies, the court divided the development corporation's functions into three categories: purely public functions, mixed public and private functions, and purely private functions. It considered purely public the corporation's purposes of working toward city development strategies; activities to achieve strong business climate and urban renewal; implementing, overseeing, and encouraging private and public development projects; attracting new businesses; and carrying out contracts with the city to coordinate planning. Id. at 424. Further, the court noted that the development corporation was purely public insofar as the mayor had the power to appoint, nominate, and remove members of the corporation, 80 percent of its budget was provided by the city, and its property would revert to the city if the corporation ceased to exist. Id.

¶ 53. The court saw other of the corporation's functions as mixed public and private functions. These included coordinating development efforts between public and private sectors, providing financial assistance and advice to create a stronger business climate, enhancing the city's image, and receiving funds from public and private sources other than the city. Id. Significantly, the court determined that the development corporation had no functions that were purely private. Id.

¶ 54. In assessing the totality of the circumstances, the court determined that because the development corporation had no purely private functions, the open meetings law required that the corporation's deliberations be as open as the proceedings of the mayor and city council. Id. at 425. Similarly, because the corporation was established with no purely private function, the court determined that it was "an agent or tool" of the city and subject to state public records law. Id. at 427.

¶ 55. The approach taken in Carmel Realty is similar to the approach taken by the New York Court of Appeals in determining whether the Buffalo Enterprise Development Corporation was required to comply with state public records laws. Buffalo News v. Buffalo Enter. Dev. Corp., 644 N.E.2d 277 (N.Y. 1994). The corporation's purposes included reducing unemployment, maintaining and creating job opportunities, encouraging development, and lessening government burdens, which the court determined were "undeniably governmental." Id. at 278-79.

¶ 56. The funding for Buffalo Enterprise derived entirely from public sources. Id. at 278. Two city officials served as permanent directors of Buffalo Enterprise, and at the time of the action another city official served as an appointed member of its board. Other members were not city officials. Further, it described itself in financial statements and public brochures as an "agent" of the city, and it was required to disclose its annual budget. Id. at 279. Based on these factors, the court concluded that Buffalo Enterprise was subject to the public records laws.

¶ 57. In News and Sun-Sentinel Co. v. Schwab, Twitty, & Hanser Arch. Group, 596 So. 2d 1029 (Fla. 1992), the Florida Supreme Court determined that the records of an architectural firm that contracted with a school board to provide services on a construction project were not subject to state public records law. In making its determination, the court examined a variety of factors. Among the factors examined were the level of public funding, whether the entity performed a governmental function, whether services contracted for are an integral part of a public agency's decision-making process, and the extent of a public agency's control over the entity. Id. at 1031.

¶ 58. The court determined that the firm did not function as part of a public body's decision process. Rather, the services provided by the firm "were not an integral part of the school board's decision-making process. . . . There was no delegation of or participation in any aspect of the school board's decision-making process." Id. at 1032. Further, the court determined that the firm's funding indicated that it was not subject to public records laws. The firm was paid by public funds, but it did not receive the money in order to put the money to a public use. Instead, "the firm's motivation for rendering professional services . .. was clearly to receive compensation, not to provide a public service." Id. at 1032-33.

¶ 59. Although this court and the court of appeals have not interpreted "quasi-governmental corporation" within the meaning of open meetings and public records laws, we recently examined whether the University of Wisconsin Hospital & Clinics Authority ("Authority") was a "political corporation" under Wis. Stat. §§ 893.80(l)(a) and (lm). Rouse v. Theda Clark Medical Center, Inc., 2007 WI 87, ¶ 17, 302 Wis. 2d 358, 735 N.W.2d 30. We determined that "[gjiven the power and structure" of the Authority, it is a political corporation, Id., ¶ 31, which is "synonymous with the term 'public corporation.'" Id., ¶ 22 (citing Black's Law Dictionary 344 (7th ed. 1999)).

¶ 60. In reaching that conclusion, we considered a variety of factors, including the creation of the Authority by the legislature and the fact that its directors were public officials or appointed by public officials. We noted that the Authority had duties to engage in collective bargaining and to enter into agreements and leases with the state. Id. ¶ 31.

¶ 61. The court paid particular attention to the Authority's financial and reporting requirements. We explained that failure to extend or renew agreements or leases would result in the transfer of facilities to the board of regents. Further, we noted that the "state is ensured of access to the [Authority's] financial statements" and that the Authority "must update the state on a consistent basis." Id. The court made the determination that the Authority is a political corporation despite the Authority's dissimilarities with public entities, including the fact that the Authority does "not receive general purpose revenue from the state." Id., ¶ 32. While Rouse does not directly address whether an entity is a quasi-governmental corporation, it is instructive here insofar as it sets forth factors relevant in classifying an entity with characteristics of both public and private corporations. Id., ¶ 22.

¶ 62. From these cases we can discern a number of factors that are important in determining whether an entity is subject to open meetings and public records laws. First among these is finances. In determining whether entities are subject to freedom of information laws a "key factor in bringing such bodies within the coverage of a state [freedom of information] law nearly always is state funding of the entity." Burt A. Braverman and Wesley R. Heppler, A Practical Review of State Open Records Laws, 49 Geo. Wash. L. Rev. 720, 731 (1981). This view is echoed is many jurisdictions.¹³ Additional factors include whether it serves a public function, whether it appears to the public to be a government entity, whether the entity is subject to government control, and the degree of access that government bodies have to the entity's records.

¶ 63. As we conclude above, an entity is a quasi-governmental corporation if, based on the totality of the circumstances, it resembles a governmental corporation in function, effect, or status. In light of the foregoing authorities, and based on the factors set forth, we conclude that BDADC does resemble a governmental corporation.¹⁴

¶ 64. To begin, we emphasize the fact that BDADC is almost entirely taxpayer funded. While BDADC minimizes the importance of its source of funding, it is a significant factor.¹⁵ Under both the 1997 and 2004 cooperative agreements the City gave substantial funding to BDADC. The first agreement stated that the City would include an annual contribution to BDADC in its budget. It further provided that the City would allocate a large portion of its room tax to BDADC. The 2004 agreement stated that the City would allocate to BDADC 90 percent of the proceeds of its room tax, with no annual contribution written into its budget. BDADC's income consists entirely of the room tax money and interest on the room tax money. In the first half of 2005, for example, the proceeds from the room tax constituted about 84 percent of BDADC's income and the rest was interest income. Further, the City provided BDADC with office space, supplies, and clerical support.

¶ 65. Like a governmental corporation, BDADC receives the vast majority of its funds from taxes borne by the public and receives basic support from government sources. In this respect, BDADC more closely resembles a governmental corporation in status than the corporation we examined in Rouse. There, we determined that the University of Wisconsin Hospital & Clinics Authority was a political corporation despite it receiving no "general purpose revenue from the state." 302 Wis. 2d 358, ¶ 32.

¶ 66. With respect to finances, BDADC is akin to the development corporation subject to open meetings and public records laws in Carmel Realty, and akin to the development corporation considered in Buffalo News. It is also similar to the corporations that the attorney general examined in 80 Op. Att'y Gen. 129. Moreover, unlike the architecture firm in News and Sun-Sentinel, 596 So. 2d 1029, BDADC received tax money in order to provide public service, not merely to receive compensation. Thus, BDADC resembles a governmental corporation insofar as it is a tax-funded organization which receives funds to achieve a public purpose.

¶ 67. The degree to which BDADC's funding comes from the City is not the only way in which its finances are like the finances of a governmental corporation. Under its articles of incorporation, if BDADC is dissolved or liquidated, any of its remaining assets are to be distributed to the City. In effect, the City provides assets for the BDADC to use, but retains an interest in those assets.

¶ 68. This parallels the Maryland Court of Appeals' reasoning in Carmel Realty, which considered the fact that a development corporation's assets would revert to a city important in its determination that the corporation was subject to state open meetings and public records laws. 910 A.2d at 415. It also parallels our reasoning in Rouse, where we considered significant the fact that property would transfer to the University of Wisconsin Board of Regents in the event that the Authority failed to extend or renew an agreement or lease. 302 Wis. 2d 358, ¶ 31.

¶ 69. In addition, BDADC resembles a governmental corporation with respect to the function it serves, both in terms of its purpose and its actions. BDADC's bylaws state that its exclusive purpose is to engage in economic development and business retention within the corporate limits and lands that could become part of the corporate limits of the City. Prior to BDADC's incorporation, the City had an economic development office that served that function. Moreover, BDADC has no other clients. Thus, with respect to the function it serves, BDADC is indistinguishable from the City office that preceded BDADC's incorporation. That resemblance is all the stronger insofar as the executive vice president of BDADC from 1997 until early 2005 had previously served as director of the City's economic development office.

¶ 70. While BDADC cannot bind the City or enter contracts on behalf of the City, it does resemble a governmental corporation insofar as it negotiates on behalf of the City. In its negotiations with Wal-Mart regarding the development of a building site, BDADC discussed utilities and fire protection. It also negotiated a memorandum of understanding that provided that the City would make improvements to the site. These are functions that the City would perform in BDADC's absence.

¶ 71. BDADC's functions are similar to those of the corporation in Buffalo News. Both BDADC and Buffalo Enterprises work to encourage development and economic opportunity, which the New York Court of Appeals determined to be "undeniably governmental." 644 N.E.2d at 278-79.

¶ 72. The functions BDADC performs are precisely those that led the Carmel Realty court to determine that a development corporation was a public body and instrument of a city subject to open meetings and public records laws. 910 A.2d at 410. Also like the corporation in Carmel Realty, BDADC does not appear to have any purely private function. The fact that final approval for contracts must come from the City does not diminish BDADC's public function. As the Carmel Realty court made clear, an entity may serve a public function even if it merely makes recommendations subject to final approval by a city official. 910 A.2d at 425.

¶ 73. BDADC's status also resembles that of a governmental corporation from the perspective of the public. Until after the start of this litigation, BDADC's offices were located in the City's municipal building, and the City included BDADC on its website. Two of BDADC's directors were City officials. The effect of such close ties is to make it difficult for the public to discern where the City ends and BDADC begins.

¶ 74. In this respect BDADC is similar to the corporation in Buffalo News, which stated in its public brochures and financial statements that it was an agent of a city. 644 N.E.2d at 279. It is also similar to the corporations examined in 80 Op. Att'y Gen. 129, which were housed in municipal buildings and listed the Department of City Development as their principal addresses. Thus, BDADC resembles a governmental corporation in its public appearance.

¶ 75. BDADC also resembles a governmental corporation to the extent that the City maintains a degree of control over BDADC's actions. An aspect of that control is the composition of BDADC's board of directors. Although a majority of BDADC's directors are private citizens, two are City officials that serve as ex officio members. This contrasts with Rouse, where all of the voting members of the board of directors were either public officials or appointed by public officials. It also contrasts with Carmel Realty.

¶ 76. However, in Buffalo News only three members of the corporation's board were city officials, 644 N.E.2d at 278, and one of the corporations considered in 80 Op. Att'y Gen. 129 reserved no positions on its board for city officials. Further, having aboard composed of or appointed by public officials is not a requirement for an entity to be subject to open meetings and public records laws. Rather, it is part of a totality of circumstances test. Finally, the fact that some City officials serve as ex officio members of BDADC's board evinces some degree of City control.

¶ 77. The degree of access that the City has to BDADC's information is also important in determining whether BDADC is a quasi-governmental corporation. The cooperative agreements between the City and BDADC allow that City representatives may examine BDADC’s accounting records. Additionally, the 2004 agreement provides that BDADC must submit its annual management plan to the City.

¶ 78. In Rouse, the facts that the Authority was required to "update the state on a consistent basis" and that the state was "ensured access to the [Authority's] financial statements" were important to our determination that it was a political corporation. 302 Wis. 2d 358, ¶ 32. Similarly, in Buffalo News, the fact that Buffalo Enterprises had to disclose its annual budget weighed in favor of the determination that it was subject to public records laws. 644 N.E.2d at 279. Accordingly, insofar as BDADC must provide the City with access to information, it resembles a governmental corporation.

¶ 79. Thus, BDADC resembles a governmental corporation in several important respects: (1) other than interest income, its sole source of funds is public tax dollars, (2) it serves a public function and has no purely private function, (3) it appears in its presentation to the public that it is part of the City, (4) the City maintains a degree of control over BDADC, and (5) the City has access to BDADC's financial information and management plan. No one of these ways is sufficient to conclude that BDADC is a quasi-governmental corporation. However, considering them in totality, we determine that BDADC resembles a governmental corporation in function, effect, or status. Thus, it is a quasi-governmental corporation within the meaning of §§ 19.82(1) and 19.32(1).¹⁶

V

¶ 80. Having determined that BDADC is a quasi-governmental corporation does not mean that all of its meetings are automatically open or that all of its records are immediately disclosed to the public. There are several ways in which economically important information could be protected from disclosure for the purposes of open meetings and public records laws.¹⁷

¶ 81. For example, § 19.85(l)(e) allows for closed sessions regarding purchases of public property, investing public funds, or doing other public business "whenever competitive or bargaining reasons require a closed session."¹⁸ Similarly, § 19.85(l)(i) allows closed sessions for matters related to the economic adjustment program pursuant to Wis. Stat. § 560.15¹⁹ where discussing such matters in open session "could adversely affect the business, its employees or former employees." Wis. Stat. § 19.85(l)(i). Additionally, at oral argument BDADC conceded that much of its work is done by its executive vice president, and that informal meetings between companies and the executive vice president would not constitute meetings under § 19.82(2).²⁰

¶ 82. The public records statutes also contain provisions which may prevent disclosure of information important to economic development. Recognizing the relation between open meetings and public records laws, § 19.35(l)(a) allows that under some circumstances exemptions to open session requirements under § 19.85 can serve as a basis for denying public access to a record.

The exemptions to the requirement of a governmental body to meet in open session under s. 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 s. 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.

Wis. Stat. § 19.35(l)(a); see Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶ 49, 300 Wis. 2d 290, 731 N.W.2d 240.

¶ 83. Another important consideration is § 19.36(5), which allows that authorities "may withhold access to any record or portion of a record containing information qualifying as a trade secret" pursuant to Wis. Stat. § 134.90(l)(c). "Trade secrets" are defined as follows:

(c) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique or process to which all of the following apply:

1. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

2. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.

Wis. Stat. § I34.90(l)(c).²¹

¶ 84. In addition to the express statutory provisions limiting disclosure under public records law, Wisconsin courts have recognized other limitations to disclosure, including the requirement that the harm to the public from disclosure should be balanced against the benefit of disclosure to the public. One must be balanced against the other in determining whether to permit disclosure. State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 681, 137 N.W.2d 470 (1965); see also Melanie R. Swank, The Wisconsin Public Records and Open Meetings Handbook, 2nd ed., § 4.9.

¶ 85. Accordingly, in Linzmeyer v. Forcey, 2002 WI 84, 254 Wis. 2d 306, 646 N.W.2d 811, once this court determined that the open records law applied to a report regarding potential teacher misconduct, this court examined whether a public policy interest in keeping the record confidential overcame the presumption favoring disclosure. Id., ¶ 11. In so determining, it applied a balancing test "weighting] the public policies not in favor of release against the strong public policy that public records should be open for review." Id., ¶ 12 (citing Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), and Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979)). The court determined that disclosure was favored in part because the investigation into the misconduct had been closed and no further proceedings were pending. Thus, releasing records could not be expected to interfere with ongoing proceedings. Id., ¶ 39.

¶ 86. Likewise, in Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, 199 Wis. 2d 768, 546 N.W.2d 143 (1996), this court determined that an important factor in determining whether to release a letter to a school district employee regarding a disciplinary action was the fact that the disciplinary action had already taken place. Id. at 788. Thus, the harm that could result from premature release (creating a false impression) was no longer present. Id.

¶ 87. Similarly, in a case involving disclosure of information relating to economic development, the balance may tip in different directions depending on the timing of the request. Where premature disclosure of records could undermine an important public policy objective in the context of economic development, the balance may tip in favor of nondisclosure. However, when releasing the records could not be expected to interfere with ongoing negotiations, the public interest in disclosure may outweigh the public interest in nondisclosure.

¶ 88. Although BDADC argues that its ability to properly function will be impaired if it is determined to be a quasi-governmental corporation, we note that other economic development corporations appear to function well despite operating as quasi-governmental organizations. As we discuss above, in 80 Op. Att'y Gen. 129 the attorney general advised two economic development corporations that they would be considered quasi-governmental corporations under §§ 19.82(1) and 19.32(1). At oral argument, the State indicated that the corporations considered in that opinion have continued to fulfill their purpose despite being subject to open meetings and public records laws. In addition, the Wisconsin Housing and Economic Development Authority operates under the express requirement that its records are open to the public with only limited exception. Wis. Stat. § 234.265.²²

¶ 89. Finally, we emphasize that not all economic development entities are quasi-governmental corporations subject to the open meetings and public records laws. We have determined that BDADC is a quasi-governmental corporation because it resembles a governmental corporation.

¶ 90. However, BDADC could be organized differently. BDADC does not have to receive all of its income from public funds and interest on those funds, its assets do not have to revert to the City in case of dissolution or liquidation, it did not have to be housed in the City municipal building, it did not have to be included on the City website. It does not have to open its records to the City, it does not have to submit its annual management plan to the City, it does not have to have City officials serving as ex officio members of its board, and the City does not have to be BDADC's only client. These are choices that BBADC has made.²³

¶ 91. The determination that BDADC is a quasi-governmental corporation subject to open meetings and public records laws is further supported by the policies of the open meetings and public records laws. The open meetings statutes are to be construed "liberally" to achieve the purpose of "complete information regarding the affairs of government as is compatible with the conduct of governmental business,"²⁴ and the public records statutes are to be "construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business."²⁵

¶ 92. As we have noted, fostering economic development is also an important legislative directive. We must "foster the growth and diversification of the economy of the state"²⁶ so that Wisconsin is "an attractive place to live and work... ."²⁷ However, for the reasons set forth above, we are not convinced that determining that BDADC is subject to state open meetings and public records laws undermines this policy.

VI

¶ 93. In this declaratory judgment action the State of Wisconsin seeks a declaration that BDADC is a quasi-governmental corporation and is subject to both the open meetings and public records laws, and had requested forfeitures against the members of the board for each violation of the open meetings law. As noted above, there is no specific request for public records involved in the current action. The State also seeks an order voiding actions taken at past meetings which were not open to the public and an award of reasonable attorney fees and costs.

¶ 94. BDADC contends that if this court decides that it is subject to open meetings and public records laws, such ruling should be made prospectively only. We agree.

¶ 95. As we discuss above, neither this court nor the court of appeals has previously interpreted the meaning of "quasi-governmental corporation" within the meaning of §§ 19.82(1) and 19.32(1). Normally a new rule applies retrospectively. However, applying a new rule to circumstances in which actors reasonably rely on contrary views may be unsettling. This court will therefore occasionally apply a new rule prospectively to limit such an effect. Harmann v. Hadley, 128 Wis. 2d 371, 377-78, 382 N.W.2d 673 (1986).

¶ 96. We examine three factors in deciding whether our determination is to apply retroactively or prospectively:

(1) whether the decision establishes a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) whether retroactive application would further or retard the operation of the new rule; and (3) whether retroactive application could produce substantial inequitable results.

Wenke v. Gehl Co., 2004 WI 103, ¶ 71, 274 Wis. 2d 220, 682 N.W.2d 405.

¶ 97. In light of these factors, we conclude that the test for whether an entity is a quasi-governmental corporation subject to open meetings and public records laws should apply prospectively only. First, this is a case of first impression, and we have established a new standard that was not clearly foreshadowed. Second, applying the standard set forth here retroactively would not advance the rule with respect to open meetings. As we noted in Buswell, "[t]he public cannot go back and attend meetings [that violate open meetings law] when such meetings have already occurred." 301 Wis. 2d 178, ¶ 48.

¶ 98. Most important in the present case, though, is the third factor. Applying the approach established in this case retroactively may produce substantial inequitable results. Exposing BDADC and individual members to forfeitures on the basis of a reasonable interpretation of the statute where no appellate court had yet provided an interpretation is inequitable here. Additionally, issuing an order voiding any actions taken at past meetings not open to the public would be unduly unsettling to the persons and businesses involved with or relying on the actions.

VII

¶ 99. In sum, we determine that an entity is a quasi-governmental corporation within the meaning of Wis. Stat. §§ 19.82(1) and 19.32(1) if, based on the totality of circumstances, it resembles a governmental corporation in function, effect, or status. Such a determination requires a case-by-case analysis. Considering the facts of this case we conclude that BDADC is a quasi-governmental corporation subject to open meetings and public records laws.

¶ 100. The test for determining whether an entity is a quasi-governmental corporation applies to both open meetings law and public records law. However, our test is not to be applied to past violations, that is, for violations prior to the date of the release of this opinion. Because we today announce a new test, applying that test to past violations would be inequitable and unduly unsettling.

¶ 101. We apply our determination prospectively such that the defendants in the present case are not subject to forfeitures for past violations of the open meetings laws and we decline to void any actions taken at past meetings not open to the public. Accordingly, we reverse the circuit court and remand to the circuit court to address the remaining request for attorney fees and costs and to enter judgment consistent with this opinion.

By the Court. — The order of the circuit court is reversed and the cause is remanded.

¶ 102.

Justice ANNETTE KINGSLAND ZIEGLER did not participate.

1 Wis. Stat. § 19.81(1X2005-06). See also Wis. Stat. § 19.31 (declaring open government purpose of public records laws).

All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.

2 Wis. Stat. § 560.01(l)(purposes of establishment of Department of Commerce).

3 Wis. Stat. § 560.08(l)(providing for economic and community development planning and research programs).

4 Upon a motion by the State, the claims against the individual defendants were dismissed without prejudice. Because the dismissal was without prejudice, the claims may be reasserted. Therefore we reference the forfeiture claim in our prospective application.

5 The State appeals an order of the circuit court for Dodge County, Judge Richard O. Wright presiding.

6 Wis. Stat. § 19.83.

7 Wis. Stat. §§ 19.33-19.39.

8 The public records provisions at issue here, Wis. Stat. §§ 19.31-19.39, were added as of January 1, 1983. Chapter 335, Laws of 1981.

9 See 73 Op. Att'y Gen. 53 (1984)(concluding that a historical sites organization was not a quasi-governmental corporation because it did not possess any governmental attributes and therefore did not resemble a governmental organization); 66 Op. Att'y Gen. 113 (1977)(advising that a volunteer fire department was not a quasi-governmental corporation because it was not directly created by a governmental body); 74 Op. Att'y Gen. 38 (1985)(determining that "friends" groups supporting public television and radio stations were not quasi-governmental corporations because they were not directly created by government entities).

10 This approach also comports with the approach taken in several other jurisdictions. See Craig D. Feiser, Protecting the Public's Right to Know: The Debate Over Privatization and Access to Government Information Under State Law, 27 Fla. St. L. Rev. 825, 837-44 (2000)(collecting cases from jurisdictions employing a "totality of factors" approach to determining applicability of public records laws to private entities).

11 Although the parties agree that analyzing the totality of circumstances is a proper approach, the dissent objects to the approach on the ground that it fosters uncertainty. Dissent, ¶ 146. We apply totality of circumstances tests, along with the attendant uncertainty, in cases involving our most basic rights. See State v. Young, 2006 WI 98, ¶ 75, 294 Wis. 2d 1, 717 N.W.2d 729 (Fourth Amendment); State v. Thiel, 2003 WI 111, ¶ 62, 264 Wis. 2d 571, 665 N.W.2d 305 (Sixth Amendment right to counsel); State v. Lindell, 2001 WI 108, ¶ 41, 245 Wis. 2d 689, 629 N.W.2d 223 (right to an unbiased jury); State v. Secrist, 224 Wis. 2d 201, 218, 589 N.W.2d 387 (1999) (right that arrest be made only with probable cause). Applying a totality of circumstances test in this context is no more problematic than doing so in cases involving such basic rights.

12 The dissent complains about our use of cases from other states interpreting different statutory language. It appears to believe that we are using these cases to determine the meaning of "quasi-governmental corporation," and calls our discussion of other cases a "leap of logic" and "results-oriented." Dissent, ¶ 159. The dissent misinterprets our approach. We have determined the meaning of quasi-governmental corporation based upon the language of the statute, its history, and the interpretations rendered by the attorney general. Whether a particular entity resembles a governmental corporation requires an analysis of the traits of governmental corporations. We use the cases from other jurisdictions to examine what characteristics are relevant in determining whether an entity resembles a governmental corporation, not to discern the meaning of "quasi-governmental corporation."

13 The Nebraska Supreme Court has determined that the power to receive tax revenue suffices to render an agricultural society, formed by voluntary association pursuant to a statute, a "public body" subject to state open meetings law. Nixon v. Madison County Agricultural Society, 348 N.W.2d 119, 119-20 (Neb. 1984).

Other courts have determined that funding is an important, though not dispositive, factor in whether an entity is subject to open meetings and public records laws. In State ex rel. Toledo Blade Co. v. University of Toledo Foundation, 602 N.E.2d 1159 (Ohio 1992), the Ohio Supreme Court determined that a private nonprofit foundation that received and solicited gifts on behalf of a public university was subject to open meetings and public records laws. The court based its decision on the fact that the foundation received tax revenues, had free office space from the university, had its employees' wages paid by university funds, and performed a public function. Id. at 1162-63. See also Weston v. Carolina Research & Dev. Found., 401 S.E.2d 161 (S.C. 1991)(foundation operated for benefit of public university which receives and expends public funds subject to open records law); Massachusetts Bay Transp. Auth. Ret. Bd. v. State Ethics Comm'n, 608 N.E.2d 1052, 1056 (Mass. 1993); Adams County Record v. Greater North Dakota Ass'n, 529 N.W.2d 830, 834-38 (N.D. 1995).

14 The factors set forth here are not exclusive in determining whether entities are subject to open meetings and public records laws. Rather, they are the factors relevant to the present case. In News and Sun-Sentinel Co. v. Schwab, Twitty, & HanserArch. Group, 596 So.2d 1029 (Fla. 1992), for example, the Florida Supreme Court established a nine-factor test for determining whether a private corporation acted on the behalf of a public agency. Among those nine factors were the level of public funding, whether public and private funds were commingled, whether a public agency had a substantial financial interest in the entity, for whose benefit the private entity was acting, and whether the private entity's services were an integral part of the public agency's decision-making process. Id. at 1031. The Colorado Court of Appeals adopted the same nine-factor test in Denver Post Corp. v. Stapleton Dev. Corp., 19 P.3d 36, 41 (Colo. Ct. App. 2000).

A leading treatise on open meetings laws sets forth 14 factors used by courts in determining whether private entities are subject to such laws. Ann Taylor Schwing, Open Meetings Laws (2d ed. 2000), § 4.100. Among the factors included are whether the entity is exempt from taxes, whether it is a for-profit or nonprofit entity, whether it is subject to government audits, and whether it is entitled to assert governmental immunities. Id.

15 The dissent similarly minimizes the importance of BDADC's funding by claiming that the persons upon whom the room tax is levied do not actually pay the tax. Dissent, ¶ 115 n.3. Its view directly contradicts the language of the ordinance, which states that the "tax is imposed upon the retailers" furnishing lodging. City of Beaver Dam, Wisconsin Municipal Code § 2-124(b). In addition, the dissent's claim that "transients, not residents, pay the room tax," id., makes an assumption about who foots the bill for lodging in Beaver Dam. The dissent has provided no information regarding whether such bills are paid by Beaver Dam businesses and residents for their guests, by people who live elsewhere, or by someone else altogether. It appears to have simply made up facts.

More important, though, is the dissent's implication that the residents of Beaver Dam are not entitled to information about how their government spends its money based upon the source of the money. The dissent's view is unsupported, novel, and wrong. Regardless of who pays the tax money, it is for the use of the residents of Beaver Dam, and their claim to know how it is used is undiminished.

16 The dissent at once complains of the lack of a bright line rule and the stringency of the test set forth in this opinion. Dissent, ¶¶ 198-99, 215. It cites to an unadopted legislative proposal to define economic development corporation as evidence of the need for a bright-line rule. Id., ¶ 195. Both of the bright-line proposals cited by the dissent are more stringent than the test set forth here, and both would include BDADC. Id., ¶¶ 196-97. Thus, contrary to the dissent's assertion, either proposal would dictate the result that BDADC is a quasi-governmental corporation. See id., ¶ 197-98. Moreover, the apparent need for such proposals is evidence that a bright-line rule is not inherent in the words of the statute.

17 See Sands v. Whitnall School District for discovery rules applicable to meetings in closed session pursuant to chapter 19, Wisconsin Statutes. 2008 WI 89, 312 Wis. 2d 1, 754 N.W.2d 439.

18 Wisconsin Stat. § 19.85(l)(e) provides that a closed session may be held:

(e) Deliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.

19 Wisconsin Stat. §560.15 provides for communities to assist businesses considering ceasing operations or laying off employees in the state.

20 Wisconsin Stat. § 19.82(2) provides in relevant part:

"Meeting" means the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. If onehalf or more of the members of a governmental body are present, the meeting is rebuttably presumed to be for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body....

21 The federal Freedom of Information Act specifically exempts "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b) (4) (2007). Several states follow the federal statute and expressly provide exemptions for commercial and financial information other than trade secrets. See Theresa M. Costonis, What Constitutes Commercial or Financial Information, Exclusive of Trade Secrets, Exempt From Disclosure Under State Freedom of Information Acts — General Rules of Construction, 5 A.L.R. 6th 327, § 2 (2005). The Wisconsin legislature, however, has expressly exempted only trade secrets. The determination of whether information other than trade secrets should be exempt from public records disclosures in order to further the policy of economic development is a question best addressed by the legislature.

22 The dissent overstates the consequences of our decision with its "sky is falling" discourse. It describes the open meetings and public records laws as "minefield[s]," dissent, ¶ 141, and forewarns of doom, id., ¶ 127. As noted above, many economic development entities have .been operating successfully as a part of local government. Indeed the shy remains intact above those communities throughout the state.

23 The dissent states that "the majority attacks the legitimacy" of the desire to engage in economic development without being subject to open meetings and public records laws. Dissent, ¶¶ 127-28. The dissent misstates our position. We question the legitimacy of doing so via a quasi-governmental corporation funded exclusively with public money and interest thereon and which further resembles a governmental corporation in function, effect, or status as set forth in the text.

24 Wis. Stat. § 19.81 provides in relevant part:

(1) 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....

(4) This subchapter shall be liberally construed to achieve the purposes set forth in this section ....

25 Wis. Stat. § 19.31 provides:

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 employees 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 employees whose responsibility it is to provide such information. 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. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

26 Wis. Stat. § 560.01(l)(purposes of establishment of Department of Commerce).

27 Wis. Stat. § 560.08(l)(providing for economic and community development planning and research programs).