August 31, 2020 at 12:02 p.m.
Oneida County asserts complete secrecy for attorney communications
Walker: No blanket exception exists for correspondence between attorneys, clients
Oneida County asserts complete secrecy for attorney communications
But Lakeland Times publisher Gregg Walker, who made a May 29 request for three months of county board chairman Dave Hintz's official emails, as well as those of supervisors Mike Timmons and Tom Kelly, says it is well-established no such automatic privilege exists in the state.
The privilege, Walker contends, attaches only to explicit and confidential legal advice sought by the client, and to correspondence from lawyers that would expose that legal advice.
In the requests, Walker asked for all emails sent by Kelly, Timmons, and Hintz, and for all emails received by them, for the previous three months - Feb. 28 through May 29 - related to their respective jobs as supervisors and as chairman of the Oneida County board of supervisors.
(The newspaper has also made requests for public health officer Linda Conlon's emails, which have not been received, and for those of supervisor Steven Schreier, which have been received, see separate story.)
Timmons and Kelly fulfilled their requests July 9. Hintz had acknowledged his request July 21 but did not send any records until Aug. 15, about two-and-a-half months after the records request.
In the records, virtually all the communications between the county's attorneys and county officials were redacted. In addition, a series of nine email strings dated between May 16 and May 20, are completely devoid of content, with many recipients' names blocked out.
Walker says the claim of a blanket privilege for all attorney-client communications, as Hintz outlined in detail in his Aug. 15 response, shows a brazen contempt for the state's open records laws.
"The response by Mr. Hintz takes obstruction of transparency to a new level," Walker said. "It is established in case law that there is no automatic privilege for all correspondence between attorney and client, only for specific legal advice sought by the client."
Such a restriction of the privilege is necessary from preventing public access to broad policy discussions that should be open merely by including attorneys as party to the communications, Walker said. And withholding recipients' identifying information makes it impossible to know if the recipients were actually qualifying clients or third parties that would forfeit any privilege, Walker added.
"In sum, the county says the redacted communications have attorney-client privilege merely because they say they do, without any evidence of privilege and without any way for the public to determine the validity of the claim," he said. "That cannot stand."
In addition to the complete redaction of virtually all attorney-client communications, the county has refused to give The Times access to its public health pandemic preparedness and response plans, alleging security concerns, despite the publication of such plans by many municipalities as well as by the federal government.
Walker said that refusal could itself compromise public health and safety.
"The county assures everyone that they have emergency management and public health plans to keep us safe, but refuses to tell the public what those plans are, making it impossible for the public to judge how adequate or constitutional the plans are or to hold officials accountable for their actions during a pandemic," he said. "Hintz's responses make a mockery of the public records laws."
Attorney client privilege
In his response letter, Hintz cited several court cases he said shows all communications between attorneys and clients to be privileged and exempt from release.
"In discussing the predecessor statute to (the current attorney-client privilege statute), the court in (Dudek v. Circuit Ct. for Milwaukee County) recognized that 'the law is well settled that once the professional relationship is established, all communications, oral and written, between attorney and client are privileged from production ...,'" Hintz wrote. "Based upon the common law exception to the public records law for attorney client communications, any records reflecting communication between agents and officials of the county and the county's counsel are exempt from disclosure under the public records law."
But Walker maintains the opposite is actually what is well settled and Hintz cherry picked a quote from the Supreme Court's Dudek decision.
"Indeed, even the judges in the Dudek case repudiated it," Walker said.
In fact, the Dudek court makes the explicit point that not all attorney-client correspondence is automatically protected.
"In applying the privilege to the particular facts of our case, we can say generally (emphasis added) that the privilege prevents attorney Dudek from producing any correspondence between himself and his client or his client's agents, which correspondence is relevant to the lawsuit (emphasis added) ...," the Dudek decision states.
The Dudek court also emphasized that such legal advice must be sought by the client and does not include extraneous general discussions and materials.
"It appears, generally, that all matters other than those just specified including reports of experts prepared for use by Mr. Dudek before or at trial are not protected by the attorney-client privilege," the decision stated.
What's more, the Dudek court made its point that not all attorney-client communications are privileged - just those giving relevant legal advice to the client - in the paragraphs immediately preceding the sentence cited by Hintz.
"Wisconsin, like most jurisdictions, has recognized only a narrow ambit to the communications included within the attorney-client privilege," the Dudek decision stated. "This narrowness in scope of the privilege has resulted in a number of cases which make clear the type of communications which are not protected by the privilege. In its landmark case on work product, Hickman v. Taylor, supra, at page 508, the United States supreme court summarizes often troublesome items which it considers not protected by the attorney-client privilege."
Those examples, the Dudek court stated, include "memoranda, statements and mental impressions," and "writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories." That would include policy discussions in which attorneys take part and offer general legal opinions, rather than specific and sought-after legal advice.
The Dudek court also observed that "(o)ur court has also had the opportunity to hold a number of communications not protected by the privilege of (the attorney-client privilege statute)."
After Dudek
The Dudek decision was handed down in 1967, after which the attorney-client statute was amended and a new general rule of privilege enacted. However, that statutory amendment still requires an attorney to be giving specific legal advice to the client: "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 [emphasis added]...," the statute states.
Since then, multiple court decisions have clarified the intent of that rule.
First, it is to be narrowly construed, ruling out any blanket exception, as expressed in multiple court decisions, as in the state Supreme Court's 2002 decision in Lane v. Sharp Packaging Systems: "Furthermore, because the lawyer-client privilege is 'an obstacle to the investigation of the truth' it should be 'strictly confined within the narrowest possible limits consistent with the logic of the principle.'"
In 1994, in Journal/Sentinel v. Shorewood, the state court of appeals ruled against a school district that had sought to protect a memorandum of understanding related to the settlement of a breach-of-contract and defamation lawsuit brought by the district's superintendent. The district's law firm largely drafted the memorandum and possessed custody of it, the court observed.
The court also determined that it was a public record and further determined that the document was the product of the law firm's provision of legal services, that it was produced during the course of the law firm's representation of the district, and was, in effect, the culmination of that representation.
But far from declaring that the document was thus protected by attorney-client privilege, the court rejected the district's argument that releasing the memo would be a breach of the privilege.
"This argument is without merit," the decision stated. "The privilege applies only to confidential communications from the client to the lawyer; it does not protect communications from the lawyer to the client unless disclosure of the lawyer-to-client communications would directly or indirectly reveal the substance of the client's confidential communications to the lawyer."
In State v. Boyd in 2011, the court of appeals reinforced that interpretation: "First, the privilege only encompasses confidential communications from the client to the lawyer, and those communications from the lawyer to the client if their disclosure 'would directly or indirectly reveal the substance of the client's confidential communications to the lawyer.'"
In 1996, in Wisconsin Newspress v. Sheboygan Falls School District - a case that Hintz cites as an example of the courts' support for a blanket exception for the privilege - the Supreme Court again rejected a blanket exemption for all correspondence between attorneys and clients.
It did find that a letter was covered by the privilege not because of a blanket exception but because the letter was properly privileged under the "narrow ambit" of communications the state recognizes.
"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," the decision stated. "The newspapers argue that the attorney-client privilege generally does not apply to communications from the lawyer to the client, citing Shorewood. However, an exception is where disclosure of the communication would indirectly reveal the substance of the district's confidential communications to its lawyer. We conclude that such an indirect revelation would occur in this case [emphasis added]."
That the court took the time to review to communication to see if the privilege could be exercised proves that no blanket privilege existed for the communication, for in that case the court would not have had to review the letter, Walker said.
Walker said Hintz's other reasons for denying access to all attorney-client communications are similarly flawed. In his response, Hintz cites an evidentiary privilege and an exemption in the open meetings law that he says were sufficient to deny access to certain records.
To wit, Hintz argued, the public policy supporting the privilege is so strong that the Wisconsin Department of Justice calls it a sufficient basis for denial without resorting to the balancing test.
"Hintz's major claims about attorney-client correspondence are all blanket claims - the common law claim, and an evidentiary privilege claim that it is always in the public's interest to deny attorney-client communications," Walker said. "But the latter claim is every bit as much a blanket exception as the common law claim, albeit a policy one, that the courts have rejected."
Finally, Hintz says that even if the balancing test is applied, the open meetings exemption allowing closed sessions for consulting with officials about litigation supports denial for some correspondence because the public records law says the exemption is indicative of public policy. In other words, if the content would justify a closed session, it would justify redactions and denial of the content in written communications.
But, in their responses, Hintz and other supervisors never denied any records or justified complete redactions for any specific correspondence based on that exemption, or offered any hint of the subject matter of any such communications. Hintz wrote that the open meetings law exemption applied to "certain communications reflected in the responsive records," but those communications were never identified.
What's more, Walker says, even if the county did identify the records for which they were claiming the open meetings exemption, merely citing the exemption as the reason for the denial of the records fails.
"The DOJ compliance manual clearly states a closed session 'must contain enough information for the public to discern whether the subject matter is authorized for closed session,'" Walker said. "According to the compliance manual, the attorney general has advised that notice of closed sessions must contain the specific nature of the business, as well as the exemption(s), and that '[m]erely identifying and quoting from a statutory exemption does not reasonably identify any particular subject that might be taken up thereunder and thus is not adequate notice of a closed session.'"
As such, Walker said, a denial or redaction of a record based on the open meetings exemption must likewise not merely identify the exemption, as Hintz did, but give the specific nature of the business in the letter, but Hintz failed to give any subject matter or even identify the communications he redacted under the exemption.
"Indeed, nowhere in any of the responses do Mr. Hintz or other officials ever offer any evidence that the redactions they make under the attorney-client privilege claim are justified," Walker said.
Walker said Hintz's claims of privilege fail under multiple court-declared tests.
"He does not provide any explanation or evidence that communications represent any relevant legal advice to the clients and are not merely the attorneys' 'mental impressions, conclusions, opinions or legal theories,' or, for that matter, entail broad policy discussions," Walker said. "According to Mr. Hintz, the records are privileged merely because he says they are, and we are supposed to trust that. That will not stand in court."
In fact, in a 2015 case, Wisconsin Professional Police Association v. Marquette County, the court of appeals ruled that authorities must demonstrate that withheld records actually merit the privilege.
"As an authority seeking to redact information from records that are otherwise accessible under the public records law, the county has the burden to show that the redactions are justified," the court determined. "The question, then, is whether the county has met its burden to show that the material in the requested redactions in this case is, as the county asserts, privileged attorney-client communication or protected attorney work product."
Walker says Hintz and other officials have not proved that any of the redactions are privileged.
What's more, Walker said the county redacted the name of many email recipients of the alleged privileged communications between May 16 and May 20, making it impossible to determine if people who would not be authorized under the privilege received any of the emails.
If that were the case, the privilege would collapse.
According to the Boyd court, a communication is 'confidential' under the rule only if it is "not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication."
Walker also claims the names should be released because they do not disclose the content of any privileged communication, merely the names of those receiving the communication, as the court in Wisconsin Professional Police Association v. Marquette County ruled about billing invoices.
"Moreover, our review of the unredacted versions of the invoices reveals no reason to suppose that the redacted portions, on their face, reveal the substance of privileged communications," the court found. "Indeed, many of the redacted portions do not appear to even arguably reflect the content of communications, but rather, appear simply to refer to the fact that there was a contact between parties or a contact between the county with its attorneys. The county fails to explain here, as it failed to do in the circuit court, how any of the proposed redactions contain information that directly or indirectly reveals the substance of confidential communication."
The court found that, like the circuit court before it, all it 'had in front of [it] was little more than the bald assertion that these were attorney/client documents.'
"Therefore, like the circuit court, we conclude that '[a]bsent more information, the strong presumption of public access was not overcome' on summary judgment with respect to the redactions made on the basis of the attorney-client privilege," the court concluded.
The same applies in this situation, Walker argued.
"Disclosure of the recipients would disclose no substance of allegedly privileged communications, but it would allow us to see if the recipients were indeed covered by the privilege, which would fail if they weren't," he said.
In the end, Walker said Hintz's reasoning is severely flawed.
"Mr. Hintz and the county have violated the open records law by applying a blanket exception that doesn't exist to many records, by asserting open meetings exemptions without identifying the subject matter related to the exemption or even the documents that they claim the exemption for, by failing to provide any proof that any of the redacted communications' content represent confidential legal advice requested by the client or are otherwise justified under attorney-client privilege, and by redacting recipient names that reveal no privileged content but would verify that persons receiving the communications were covered by privilege," he said.
Pandemic response
The county has also denied the public access to its pandemic preparedness and response plans.
"If the county's emergency preparedness and response plans are disclosed, it could allow for disruption in the implementation of the emergency management plans and/or an ability to properly execute those plans," Hintz wrote in his August 15 letter to Walker.
Oneida County is not alone in taking this position. Multiple municipalities and universities around the country also keep their plans confidential. Still, hundreds of other municipalities and colleges publish their plans, as do states and the federal government, making the issue ripe for a court challenge.
For instance, the federal government - specifically, the Homeland Security Council - has been publishing its National Strategy for Pandemic Influenza online since 2005 and updates it regularly. The plan calls for ongoing public participation.
"The active engagement and full involvement of all levels of government and all segments of society, including at the community level, are critical for an effective response," the plan states. "Ultimately, however, the actions of individuals will be the key to our response."
Likewise, the World Health Organization posts its global preparedness plan and underscores the importance of local transparency, saying the objective is to "develop and maintain public trust in local and national health systems and to convey realistic expectations about capacities" for emergency risk management.
"The impact of pandemic influenza outbreaks on individuals and societies can be reduced by being well prepared," WHO states. "This means having a comprehensive plan that has been tested and refined through conducting exercises, engaging the whole of society."
Walker argued that hiding the county's plan makes no good sense and undermines public trust in government.
"There simply is no excuse to protect the public from its plans to protect the public, and in fact strips it of accountability," he said. "The county should be made to prove what 'security' risk there is to informing people what they will need to do in a pandemic."
Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.
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