Juneau County Star-Times v. Juneau County
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This case stemmed from litigation against Juneau County relating to an employee of the county sheriff's department. The County's defense was conducted by a law firm, which was retained to represent the County by the County's insurance company. The law firm prepared and sent to the insurance company invoices for its legal services rendered. Relying on the Public Records Law, the Juneau County Star-Times sought access to these invoices. The circuit court denied the Star-Times' claims, concluding that the invoices generated by the law firm did not fall within Wis. Stat. 19.36(3) of the Public Records Law, the "contractors' records" provision, because the County had not contracted with the insurance company for the purposes of collecting the information the Star-Times was seeking. The court of appeals reversed and remanded the matter to the circuit court to order the County to provide unredacted copies of the invoices to the Star-Times, holding that section 19.36(3) applied to the invoices. The Supreme Court affirmed, holding that section 19.36(3) governed the accessibility of the invoices in this case.
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2013 WI 4 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2010AP2313 Juneau County Star-Times and George Althoff, Plaintiffs-Appellants, v. Juneau County and Kathleen Kobylski, Defendants-Respondents-Petitioners. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 337 Wis. 2d 710, 807 N.W.2d 655 (Ct. App. 2011 - Published) PDC No: 2011 WI App 150 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: January 8, 2013 September 5, 2012 Circuit Juneau Charles A. Pollex JUSTICES: CONCURRED: DISSENTED: Roggensack, J., concurs. (Opinion filed.) Prosser, J., dissents. Ziegler, Gableman, J.J., join. (Opinion filed.) Ziegler, J., dissents. Gableman, J., joins. (Opinion filed.) NOT PARTICIPATING: ATTORNEYS: For the defendants-respondents-petitioners, there were briefs filed by Joseph P. Wright, Bryan Kleinmaier, and Richard K. Nordeng and Stafford Rosenbaum, LLP, Madison, and oral argument by Bryan Kleinmaier. For the plaintiffs-appellants, there was a brief filed by Christa Westerberg and Pamela R. McGillivray, and McGillivray, Westerberg & Bender, LLC, Madison, and oral argument by Christa Westerberg. An amicus curiae brief was filed by April Rockstead Barker and Schott, Bublitz & Engel, S.C., Brookfield, on behalf of the Wisconsin Freedom of Information Council, the Wisconsin Newspaper Association, and the Wisconsin Broadcasters Association. An amicus curiae brief was filed on behalf of the Wisconsin Department of Justice by Mary E. Burke, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general. An amicus curiae brief was filed by Andrew T. Phillips and Patrick C. Henneger, and Phillips Borowski, S.C., Mequon, on behalf of the Wisconsin Counties Association. 2 2013 WI 4 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2010AP2313 (L.C. No. 2010CV109) STATE OF WISCONSIN : IN SUPREME COURT Juneau County Star-Times and George Althoff, Plaintiffs-Appellants, FILED v. JAN 8, 2013 Juneau County and Kathleen Kobylski, Defendants-Respondents-Petitioners. Diane M. Fremgen Clerk of Supreme Court REVIEW of a decision of the Court of Appeals. ¶1 SHIRLEY S. ABRAHAMSON, C.J. Affirmed. This case calls upon the court to interpret once again the Wisconsin Public Records Law.1 The duties of government authorities under the Public Records Law are of substantial and continuing interest. 1 For purposes of this opinion, we refer to Wis. Stat. §§ 19.31-.39 (2009-10) as the Public Records Law, although these provisions are sometimes referred to as the "Open Records Law." Retention and preservation of documents, addressed at Wis. Stat. §§ 16.61-.62, and also sometimes referred to as the "Public Records Law," is not involved in the instant case. All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. No. ¶2 2010AP2313 We are reviewing a published decision of the court of appeals that reversed a judgment of the Circuit Court for Juneau County, Charles A. Pollex, Judge.2 The circuit court dismissed the complaint of the Juneau County Star-Times and George Althoff (collectively, the Star-Times) seeking relief pursuant to the Public Records Law against Juneau County and Kathleen Kobylski (collectively, the County).3 The court of appeals reversed the judgment of the circuit court. We affirm the decision of the court of appeals. ¶3 the The genesis of the present case is litigation against County relating Sheriff's Department. to an employee of the Juneau County The County's defense was conducted by the Crivello Carlson law firm (the law firm), which was retained to represent Wisconsin the County County Mutual by the County's Insurance insurance Corporation (the company, insurance company). ¶4 contract, The County and the insurance company are parties to a namely the Public Entity Liability Policy (the liability insurance policy), which the County procured from the insurance company. the insurance occurrences; The liability insurance policy provides that company shall pay shall sums defend that the the County County for covered becomes legally obligated to pay as damages as a result of a covered occurrence; 2 Juneau County Star-Times v. Juneau County, 2011 WI App 150, 337 Wis. 2d 710, 807 N.W.2d 655. 3 George Althoff is the publisher of the Juneau County StarTimes. Kathleen Kobylski is the Juneau County Clerk. 2 No. 2010AP2313 and shall also pay attorney fees and related costs in defending against a claim.4 The liability insurance policy also provides that the County shall cooperate with the insurance company (and therefore with counsel retained by the insurance company) in preparing the County's defense. ¶5 Pursuant to the liability insurance policy, the insurance company retained the law firm to represent the County. The County accepted the law firm's representation pursuant to the liability insurance policy and worked with the law firm in preparing the County's defense. Thus, an attorney-client relationship was created between the law firm and the County 4 The liability insurance policy provides, in relevant part: We [County Mutual] have the right and duty to defend any suit against the insured seeking monetary damages on account of bodily injury, personal injury, property damage or errors and omissions or any combination thereof, but: 1. The amount we will pay for damages is limited as described in Section IV Limits of Insurance; 2. We may, at our discretion, investigate any occurrence and settle any claim or suit that may result even if the settlement amount is exclusively within the insured's deductible, and 3. Our right and duty to defend end when we have used up the Limit of Insurance in the payment of judgments or settlements under Coverages A, B or C. This applies to both claims and suits pending at that time and those filed thereafter. Defense costs are payable in addition to the policy limit after any applicable deductible has been exhausted. (Emphasis in original.) 3 No. 2010AP2313 pursuant to the liability insurance policy. Representatives of the County, including corporation consulted counsel, directly with the law firm with regard to the litigation. ¶6 company rendered The law firm invoices prepared (itemized pursuant to the defense of the County. and bills) liability sent for to insurance legal its the services insurance policy in the Relying on the Public Records Law, the Star-Times sought access to these invoices. ¶7 The parties dispute whether the invoices generated by the law firm fall within Wis. Stat. § 19.36(3) of the Public Records Law, the "contractors' records" provision. Section 19.36(3) requires an authority (as defined in the Public Records Law) to "make available for inspection and copying . . . any record produced or collected under a contract entered into by the authority . . . to the same extent as if the record were maintained by the authority."5 ¶8 does not contracted 5 The circuit court concluded that Wis. Stat. § 19.36(3) apply with to the the invoices because insurance company the County "for had not purposes of Wisconsin Stat. § 19.36(3) reads in full as follows: Contractors' records. Subject to sub. (12), each authority shall make available for inspection and copying under s. 19.35(1) any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority. This subsection does not apply to the inspection or copying of a record under s. 19.35(1)(am). 4 No. 2010AP2313 collecting and maintaining the information" that the Star-Times was seeking. According to the circuit court, the invoices were produced by the law firm for the insurance company under the insurance company's agreement with the law firm, not under the insurance company's liability insurance policy with the County. The circuit applied, court the further invoices were concluded properly that even redacted if to § 19.36(3) protect the attorney-client privilege.6 ¶9 circuit The court court of appeals and remanded the reversed matter the to judgment the circuit of the court, ordering the County to make available unredacted copies of the invoices to the Star-Times. The court of appeals concluded: (1) Wis. Stat. § 19.36(3) applies to the invoices as records collected by the insurance company under its liability insurance 6 The circuit court reasoned: 1. The legal invoices are not records under Wis. Stat. § 19.32(2) because they were neither created by nor kept by the County. 2. The legal invoices are not contractors' records under Wis. Stat. § 19.36(3) because the invoices were generated under an apparent agreement or contract between the County's insurer and the Crivello Carlson law firm, to which the County was not a party. 3. The County did not waive its right to argue that the legal invoices were not records or contractors' records by failing to assert that in its initial response to the Star-Times request. 4. Even if the invoices were subject to a Public Records request, the invoices do contain detailed descriptions of the nature of the legal services rendered to Juneau County and are protected by attorney-client privilege. 5 No. 2010AP2313 policy with the County; and (2) the County failed to point to evidence sufficient to survive summary judgment on the question whether its redactions qualify as privileged attorney-client information.7 ¶10 We affirm the decision of the court of appeals. use somewhat different reasoning, however. the invoices § 19.36(3).8 are Our contractors' decision is We too conclude that records based We under on Wis. the Stat. tripartite relationship of the County, the insurance company and the law firm, all arising from the liability insurance policy. ¶11 The tripartite relationship arising from the liability insurance policy is as follows: (1) The liability insurance policy is the basis of a contractual relationship insurance company: between the County and the The insurance company agrees in the liability insurance policy to pay damages the County owes and to pay attorney fees incurred for the County's defense. (2) The liability insurance policy is the basis of a contractual relationship between the insurance company and the law firm: The insurance company retains the law firm, pursuant to the liability insurance policy, to represent the County and agrees to pay the attorney fees. 7 The law Star-Times, 337 Wis. 2d 710, ¶2. 8 In light of our holding, we need not and do not address whether the invoices should be viewed as records under Wis. Stat. § 19.32(2) and whether the County has waived its argument that the invoices are not records. 6 No. 2010AP2313 firm that accepts the assignment undertakes the County's representation in accordance with the liability insurance policy. (3) The liability insurance policy is the basis of a contractual County: relationship between the law firm and the Pursuant to the liability insurance policy, the law firm retained by the insurance company enters into a contractual attorney-client (agency) relationship with the County. ¶12 The liability insurance policy thus is the basis for contractual relationships between the County and the insurance company, as well as between the insurance company and the law firm, and the law firm and the County. ¶13 The invoices the billings for the law firm's legal work performed as the County's defense counsel and the insurance company's retained counsel were produced or collected in the course of the law firm's representation of the County and the insurance company under the liability insurance policy between the County and the insurance company. Because the liability insurance policy is the basis for the tripartite relationship between the County, the insurance company, and the law firm, and is the basis for an attorney-client relationship between the law firm and the County, we conclude that the invoices were produced or collected during the course of the law firm's representation of the County and the insurance company pursuant to the liability insurance policy; the liability insurance policy is a contract entered into by the County and the insurance company. 7 No. 2010AP2313 Thus, the requirements of Wis. Stat. § 19.36(3) have been met and § 19.36(3) governs the accessibility of the invoices. ¶14 We do not address the question whether the circuit court's approved redactions of the invoices were proper. issue is not before the court. This The County did not seek review of the issue of redaction, explaining in its petition for review that it sought review only of the issue whether the invoices are subject to the Public Records Law.9 The Order of this court accepting review in the instant case provided that the County "may not raise or argue issues not set forth in the petition for review unless otherwise ordered repeated its position at question did not oral contain by the argument any court." that the confidential work The County invoices in product or attorney-client privileged information that had to be redacted. ¶15 The propriety argued in this court. alter the privilege, rules or of the redaction not briefed or Our ruling in the present case does not governing lawyers' work confidentiality, product, protecting against disclosure. regard to these rules. was or attorney-client any other rules No issue has been raised with We therefore do not decide which court the circuit court or the court of appeals reached the correct result regarding redaction of the invoices. ¶16 Accordingly, we affirm the decision of the court of appeals remanding the matter to the circuit court to order the 9 County's Petition for Review at 10. 8 No. 2010AP2313 County to provide unredacted copies of the invoices to the StarTimes. I ¶17 procured The facts of this case are undisputed. a Public Entity Liability Policy The County (the liability insurance policy) from Wisconsin County Mutual Insurance Company (the insurance company). ¶18 Pursuant to the terms of the liability insurance policy, the insurance company retained the Crivello Carlson law firm to represent it, Juneau County Sheriff Brent H. Oleson, and the County in matters involving the County as defendant in proceedings related to Jeremy Haske, a former deputy sheriff. The law firm performed services on the Haske matter in which the County was a defendant and sent invoices for this work directly to the insurance company. The insurance company paid the law firm on the basis of the invoices. Neither the law firm nor the insurance company sent any invoices to the County. ¶19 The liability insurance policy is silent about whether the County has any right to any records, including access to invoices arising from the law firm's defense of the County. No written contract between the law firm and the insurance company for this legal work is in the record. reveal what kind of invoices, if any, The record does not the insurance company sought from the law firm. ¶20 On February 7, 2010, Peter Rebhahn, a reporter with the Star-Times, sent a letter to Kathleen Kobylski, the Juneau County Clerk, requesting access to any legal bills from the law 9 No. 2010AP2313 firm submitted to the insurance company for services rendered as counsel to the County in the Haske matters.10 ¶21 Three days later, on February 10, 2010, after conferring with Juneau County Corporation Counsel David Lasker, Attorney Michele Ford of the law firm provided redacted invoices related to the Haske matters to Mr. Rebhahn. letter explained that "[t]he invoices have Attorney Ford's been redacted to exclude information that is privileged by statute and common law." Attorney Ford also sent the redacted invoices to the County, along with a copy of the letter to Mr. Rebhahn. ¶22 On February 16, 2010, George Althoff, the Star-Times Publisher, sent a follow-up letter to County Clerk Kobylski, renewing the newspaper's request for records, asserting that the February request. 10 response from the law firm ignored the original Clerk Kobylski responded by letter on February 17, 2010, explaining that all redacted content in the legal invoices is privileged under applicable law and refusing to provide anything further. ¶23 The Star-Times then filed an action for mandamus and declaratory relief against the County on March 9, 2010, seeking disclosure of the redacted portions of the legal invoices. 10 The The letter specifically asked 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 Oleson in the years 2008, 2009 and 2010." 10 No. County answered the complaint, denying all claims. 2010AP2313 The parties filed cross-motions for summary judgment. ¶24 On August 26, 2010, the circuit court summary judgment motion in favor of the County. granted the On appeal by the Star-Times, the court of appeals ruled in favor of the StarTimes. II ¶25 This case involves the interpretation and application of the Public Records Law to undisputed facts, presenting a question of law that this court determines independently while benefitting from the analyses of both the circuit court and the court of appeals.11 ¶26 We shall in the instant case, as in prior cases, examine numerous sources in interpreting and applying the Public Records Law, provisions, including the the text interpretation and context proffered by of relevant the Attorney 11 Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, ¶17, 341 Wis. 2d 607, 815 N.W.2d 367 (Abrahamson, C.J., lead op.). At the circuit court, each party filed a motion for summary judgment. We review a circuit court's grant or denial of a summary judgment motion independently of either the circuit court or the court of appeals. We apply the same methodology and benefit from their analyses. WIREdata v. Village of Sussex, 2008 WI 69, ¶44, 310 Wis. 2d 397, 751 N.W.2d 736. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The facts in the present case are undisputed. There are no competing reasonable inferences preventing summary judgment on the question of law whether Wis. Stat. § 19.36(3) applies to the invoices. 11 No. 2010AP2313 General, the legislature's Declaration of Policy in Wis. Stat. § 19.31, and interpretations of the relevant statutory provisions in prior cases.12 III ¶27 We turn first to the text of Wis. Stat. § 19.36(3), the contractors' records provision. The general rule is that a record under the Public Records Law is a record created or kept by an authority. Wis. Stat. § 19.32(2).13 The contractors' records provision provides that even if a record is not created by or kept by an authority, the record is subject to the Public Records Law if it is "produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority." The contractors' records provision is designed to prevent a government entity from evading its responsibilities under the Public Records Law by shifting a record's creation or custody to an agent.14 ¶28 Section 19.36(3) reads as follows: Contractors' Records. Subject to sub. (12), each authority shall make available for inspection and copying under s. 19.35(1) any record produced or collected under a contract entered into by the 12 Milwaukee Journal Sentinel, 341 Wis. 2d 607, ¶18 (Abrahamson, C.J., lead op.); Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶21, 327 Wis. 2d 572, 786 N.W.2d 177 (Abrahamson, C.J., lead op.). 13 Machotka v. Village of West Salem, 2000 WI App 43, ¶6, 233 Wis. 2d 106, 607 N.W.2d 319. 14 Machotka, 233 Wis. 2d 106, ¶8. 12 No. 2010AP2313 authority with a person other than an authority to the same extent as if the record were maintained by the authority. This subsection does not apply to the inspection or copying of a record under s. 19.35(1)(am). ¶29 No one disputes that the County is an authority as defined in the Public Records Law.15 No one disputes that the liability insurance policy is "a contract entered into by" the County with the insurance company, and no one disputes that the insurance company is not an authority. ¶30 The dispute prepared by the law revolves firm around that whether contracted with the invoices the insurance company to furnish legal services to the County were produced or collected under the liability insurance policy, a contract between the County and the insurance company. ¶31 To resolve the dispute we must explore the meaning of the key words in Wis. Stat. § 19.36(3) governing the present dispute: "produced," "collected," and "under." Three different approaches have been presented to the court. ¶32 The circuit court focused on the word "produced" and concluded that the invoices were not produced under a contract between the County and the insurance company. The County agrees with this position and argues here that no separate contract exists between the County and the law firm retained by the insurance company. ¶33 The word "produce" has numerous definitions: to bring forth; to yield; to create by intellectual or physical effort; 15 See Wis. Stat. § 19.32(1). 13 No. to make; to generate; to manufacture; to cause to 2010AP2313 occur or exist; to give rise to or to happen; to form or shape. ¶34 and The court of appeals focused on the word "collected" concluded contract that between the the invoices County were and the "collected" insurance under company. a The court of appeals reasoned that the insurance company's mandatory obligation under the liability insurance policy to defend the County will necessarily result in the insurance collecting some form of invoice from the law firm.16 company's The court of appeals rejected the County's argument that the invoices were collected under whatever agreement existed between the insurance company and the law firm, not the contract between the County and the insurance company.17 ¶35 gather; The word "collect" also has numerous definitions: to bring together in a group or mass; to to receive, gather, or exact from a number of persons or other sources. ¶36 nonparty 16 In contrast, brief on the the word Department "under" of in Justice the focuses statutory its phrase Star-Times, 337 Wis. 2d 710, ¶17. 17 The Wisconsin Freedom of Information Council, the Wisconsin Newspaper Association, and the Wisconsin Broadcasters Association submitted a nonparty brief supporting the position of the court of appeals and the Star-Times. The brief argued that the contractors' records provision precludes government from performing an "end run" around the Public Records Law by contracting away the public's access to information. 14 No. "collected or produced under a contract."18 The 2010AP2313 Department examines dictionary definitions of the word "under" (along with other materials) and concludes that "the §19.36(3) language 'record produced or collected under a contract' means records produced or collected as required by or as obligated by a contract" (emphasis added). ¶37 The Department substitutes the words "as required by or obligated by" for the word "under." But other substitutes for the word "under" exist that have different connotations than "required by" or "obligated by." "Under," in reference to a contract, may be used to mean in accordance with, pursuant to, 18 The Department of Justice plays a special role in the Public Records Law. The legislature has accorded the Attorney General, who supervises and directs the Department of Justice, special significance in interpreting the Public Records Law. The legislature has specifically authorized the Attorney General to advise any person about the applicability of the law. Wis. Stat. § 19.39. The Attorney General has not issued a formal or informal opinion letter or other document regarding the issue presented in the instant case. Rather, the Department of Justice has filed a nonparty brief expressing its view. The Attorney General's opinion, advice, and brief are not binding on this court, but we may give them persuasive effect. Milwaukee Journal Sentinel, 341 Wis. 2d 607, ¶41 (Abrahamson, C.J., lead op.). The Department of Justice is critical of the court of appeals' interpretation of Wis. Stat. § 19.36(3) as defining "under" too broadly and in effect allowing release of all records connected to the subject matter of any contract between an authority and its contractor. The County agrees with the Department, arguing that the court of appeals effectively transforms private records into public records, an unwarranted intrusion into the affairs of the private entity. 15 No. 2010AP2313 in compliance with, in carrying out, subject to, or because of a contract. ¶38 The Department claims its interpretation of Wis. Stat. § 19.36(3) is supported by the history of the statute. The Department rests its interpretation of § 19.36(3) on a slim reed of unexplained changes to the draft as it worked its way through the legislature before the final language was enacted. When first part proposed, the statute included language that in defined a contractor's record as one "used in connection with the performance" of contractual services. The Department argues that removal of this language from the final bill indicates that the legislature intended to narrow the scope of the provision. There are, however, many possible reasons why particular language may fall by the wayside before a bill becomes a law, and the failure of the legislature to enact particular language has limited persuasive value.19 ¶39 to the Applying its interpretation of Wis. Stat. § 19.36(3) present case, the Department concludes that the production or collection of invoices was not required by the liability insurance policy; rather, the invoices were the product of an agreement between the insurance company and the law firm. 19 Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989) ("We do not attach decisive significance to the unexplained disappearance of one word from an unenacted bill because 'mute intermediate legislative maneuvers' are not reliable indicators of congressional intent.") (quoting Trailmobile Co. v. Whirls, 331 U.S. 40, 61 (1947)). 16 No. ¶40 This § 19.36(3) is legislature's interpretation very and narrow. directive that application It it is seems the of 2010AP2313 Wis. contrary public Stat. to policy the of the 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. Stat. § 19.31. later. Wis. We shall return to the public policy argument Moreover, this reading of § 19.36(3) may permit an authority and contractor to draft a contract to evade Wis. Stat. § 19.36(3) by delegating a record's creation and custody to an agent.20 ¶41 Like the circuit court, the court of appeals, and the Department of Justice, we explore the meaning and application of the key words in Wis. Stat. § 19.36(3) governing the present dispute: "produced," "collected," and "under." These words are not are technical or specialized words. They words with commonly understood meanings, as we described above, that should be used in interpreting and applying the Public Records Law.21 20 See Journal/Sentinel, Inc. v. School Bd. of Shorewood, 186 Wis. 2d 443, 452-53, 521 N.W.2d 165 (Ct. App. 1994) (the purpose of the contractors' records provision is to prevent an authority from evading its responsibilities under the Public Records Law by delegating a record's creation and custody to an agent). 21 Wisconsin Stat. § 990.01(1) provides as follows: Construction of laws; words and phrases. In the construction of Wisconsin laws the words and phrases which follow shall be construed as indicated unless such construction would produce a result inconsistent with the manifest intent of the legislature: 17 No. 2010AP2313 The statutory text is constant, but each of these words may have a different meaning and application depending on the fact situation. ¶42 together The in context. meaning Wis. Context of Stat. these words § 19.36(3) must refers used the usually to be separately found in relationship and their of the words at issue to other provisions in the statute or to other statutes. Context can also mean the factual setting in which the words are to be applied.22 words in § 19.36(3) may The implication of each of these vary somewhat circumstances in which § 19.36 is applied. according to the The circumstances to which these statutory words apply are myriad. ¶43 words We therefore interpret and apply the statute and the "collected," § 19.36(3), in "produced," their commonly and "under" understood in Wis. meanings, context of the factual setting of the present case. Stat. in the The factual setting here is the tripartite relationship of the County, the insurance company, and the law firm based on the liability insurance policy. (1) General Rule. All words and phrases shall be construed according to common and approved usage; but technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning. 22 Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659 ("Context usually refers to the relationship with other statutes. Context also can mean factual setting.") (internal citation omitted). 18 No. ¶44 The instant case presents the classic 2010AP2313 tripartite relationship between an insured, an insurance company, and a law firm retained by the insurance company to represent the insured. We have described this tripartite relationship previously. liability insurance policy is the basis of a The contractual relationship between the County and the insurance company. It is the basis of a contractual relationship between the insurance company and the law firm. It is the basis of a contractual attorney-client (agency) relationship between the law firm and the County. ¶45 When an insurance company retains a law firm to defend an insured in an action, it does so pursuant to the liability insurance policy. firm to insured's The insurance company's retention of a law represent (the the insured County's) (here acceptance the of County) the and the representation pursuant to the liability insurance policy create an attorneyclient relationship between retained counsel (the law firm) and the insured (the County).23 23 Meixell v. Superior Ins. Co., 230 F.3d 335, 341 (7th Cir. 2000) (an attorney retained by an insurance company to defend the insured assumes all the duties imposed by the attorneyclient relationship); Homberger v. Wendel, 764 N.W.2d 371, 376 (Minn. App. 2009) (insurance defense counsel has attorney-client relationship with insured) (quoting Pine Island Farmers Coop v. Erstad & Riemer, P.A., 649 N.W.2d 444, 449 (Minn. 2002)); 2 Restatement (Third) of The Law Governing Lawyers § 134 cmt. f (2000) ("It is clear in an insurance situation that a lawyer designated to defend the insured has a client-lawyer relationship with the insured. The insurer is not, simply by the fact that it designates the lawyer, a client of the lawyer."). 19 No. ¶46 company The law firm has duties owing to both the insurance and policy.24 owing 2010AP2313 to the insured pursuant to the liability insurance And the insurance company and insured have duties the law firm pursuant to the liability insurance policy. ¶47 The insured is required under the liability insurance policy to assist the insurance company (and the law firm that the insurance representatives consulted company of the directly retains). County, with the In including law firm the instant corporation with regard case counsel, to the litigation, pursuant to the liability insurance policy.25 24 "The relationship of attorney and client is one of agency." Marten Transport Ltd. v. Hartford Specialty Co., 194 Wis. 2d 1, 13, 533 N.W.2d 452 (1995). See also Majorowicz v. Allied Mut. Ins. Co., 212 Wis. 2d 513, 525, 569 N.W.2d 472 (Ct. App. 1997); Security Bank v. Klicker, 142 Wis. 2d 289, 295, 418 N.W.2d 27 (Ct. App. 1987). 25 There was substantial direct interaction between the law firm and the County. Attorney Michele Ford of the law firm met with Sheriff Oleson multiple times to prepare his defense. She corresponded with David Lasker, the County's Corporation Counsel, and with County Clerk Kobylski in preparing a defense. She prepared documents to be approved by David Lasker. Attorney Ford had also been the public face of the County, representing it in court in the Haske matters, a case which drew significant public attention. An authority's attorney-client relationship with a law firm may have significant ramifications for the County. For a discussion of some possible significant ramifications of an attorney-client relationship to an authority, see Journal/Sentinel, Inc., 186 Wis. 2d at 453-54. 20 No. ¶48 The insurance tripartite policy is relationship unique.26 in "These the 2010AP2313 context relationships of an among a liability insurer, its insured, and the attorney chosen by the insurer to represent the insured are sui generis."27 Insurance defense counsel are generally recognized as having two clients in any given situation is case: the insurer unique because a and party the is insured.28 not This ordinarily represented by counsel selected and paid for by a third party whose interests may not be the same as those of the individual or entity the attorney was hired to represent. ¶49 The tripartite relationship in the present case is different from the typical relationships contemplated by Wis. 26 Compare Marten Transport Ltd. v. Hartford Specialty Co., 194 Wis. 2d 1, 18, 533 N.W.2d 452 (1995) (internal citation omitted) (No tripartite relationship existed because the law firm was hired by the insured and was not retained or paid by the insurance company which functioned primarily as a workers compensation claims administrator for the insured.). 27 Moritz v. Medical Protective Co., 428 F. Supp. 865, 872 (W.D. Wis. 1977). 28 Douglas R. Richmond, Walking a Tightrope: The Tripartite Relationship Between Insurer, Insured, and Insurance Defense Counsel, 73 N. L. Rev. 265, 270 (1994). See also State Bar of Wisconsin, Wisconsin Ethics Opinions, Formal Opinion E-99-1 (2011) ("Wisconsin lawyers retained by insurers under a policy of insurance typically represent both the insurer and insured in the defense of claims. . . . Counsel who regularly represent insureds usually have ongoing attorney-client relationships and economic ties to those insurers."). The law firm's relationship with both the insurance company and the insured is permitted under the Wisconsin Rules of Professional Conduct for Attorneys as an exception to the general rule that a lawyer shall not accept compensation from a third party for representing a client. SCR 20:1.8(f)(1). 21 No. Stat. § 19.36(3) between an authority, subcontractor of the contractor. a 2010AP2313 contractor and a The County in the present case has a direct contractual relationship with the law firm pursuant to the liability insurance policy. have an attorney-client The County and the law firm relationship formed pursuant to the liability insurance policy. ¶50 The County attempts to characterize the law firm as contracting solely with subcontractor of the the insurance insurance company company. In and thus as the a ordinary business relationship between an authority, a contractor, and a subcontractor of the contractor, the authority does not have a direct contractual subcontractor is relationship not an with agent of the the subcontractor; authority; and authority does not work directly with the subcontractor. tripartite context relationship differs in in the liability each of these insurance respects the the The policy from the authority/contractor/subcontractor situation. ¶51 present provision context. We consider the unique tripartite relationship in the case and applies conclude to the that invoices the in contractors' the insurance records policy To say that the invoices sought by the Star-Times are private records produced and collected pursuant to the private contractual relationship between the insurance company and the law firm ignores the unique, direct attorney-client agency relationship between the County and the law firm in the present case based on the liability insurance policy. 22 No. ¶52 2010AP2313 The invoices relating to the County's defense in the Haske matters were generated (that is, "produced or collected," according to the common usage of these words), pursuant to (that is, "under," according to the common usage of this word) the liability insurance policy between the County and the insurance company, which relationship established between the a law contractual, firm and attorney-client the County. To characterize the invoices as solely private records under an agreement between the insurance company and the law firm is to turn a blind eye to the realities of the relationship between the County, the insurance company, and the law firm in the present case. ¶53 With regard to the significance of the County's attorney-client relationship with the law firm for purposes of Wis. Stat. § 19.36(3), Journal/Sentinel, Inc. v. School Board of Shorewood, 186 Wis. 2d 443, 521 N.W.2d 165 (Ct. App. 1994), is instructive, although the fact situation differs from that in the present case. explicitly In Journal/Sentinel, the court of appeals relied on the authority's attorney-client relationship to mandate the production of a document kept by the attorney. ¶54 The attorney in Journal/Sentinel was hired by the school board and prepared a memorandum of understanding reciting the terms of a superintendent. settlement The with school the board school refused district's to former produce the memorandum, arguing that the document was created by and kept by the attorney, not the school board, and therefore was not a 23 No. record under the Public Records Law. 2010AP2313 The school board also argued that Wis. Stat. § 19.36(3) does not apply because the attorney's contract with the board was to provide legal quickly shelved these services, not a memorandum of understanding.29 ¶55 The Journal/Sentinel court arguments and concluded that a public body may not avoid the public access mandated by the Public Records Law by delegating both record creation and custody to an agent.30 appeals reasoned that the document was The court of produced during the course of the attorney's representation of the school board and is a contractor's record subject to disclosure under Wis. Stat. § 19.36(3) of the Public Records Law. ¶56 The facts in the present case differ from those in Journal/Sentinel. In the Journal/Sentinel case, the authority (the school board) contracted directly with the attorney for legal services. the County, services for In the present case, the insurance company, not contracted the with County. the law firm Nevertheless, to provide by legal procuring the liability insurance policy and by allowing the insurance company to retain counsel for it, the County in the present case has in 29 Journal/Sentinel, Inc., 186 Wis. 2d at 453. 30 Id. at 452-53. No one claims that the County attempted to circumvent Public Records Law here. But the Public Records Law does require an authority to intend to circumvent the law before contractors' records provision becomes applicable and contractors' records are accessible. 24 the not the the No. 2010AP2313 effect contracted with the law firm for legal services and has created an attorney-client relationship with the law firm similar to the relationship that would have been created had the County and the law firm contracted directly. teaches that services, a when record a public created authority and kept Journal/Sentinel contracts by the for attorney legal may be subject to the Public Records Law. ¶57 for Because the liability insurance policy is the basis the tripartite relationship between the County, the insurance company, and the law firm and is the basis for an attorney-client County, relationship we conclude that between the the invoices law that firm were and produced the or collected during the course of the law firm's representation of the County pursuant to the liability insurance policy come under the liability insurance policy. Wisconsin Stat. § 19.36(3) therefor governs the accessibility of the invoices. ¶58 We consider now the Department of Justice's contention that public policy does not support such an interpretation of Wis. Stat. § 19.36(3). interpretation oversight of The Department asserts that its narrower advances public the public entities while policy of protecting facilitating the private financial relationship between the insurance company and the law firm, a private relationship that is not a legitimate matter of public interest. ¶59 To evaluate the Department's argument that allowing access to the invoices does not comport with the public policy 25 No. 2010AP2313 underlying the Public Records Law, we examine the legislature's declaration of policy in Wis. Stat. § 19.31. ¶60 The court has recognized that the legislature's "statement of public policy in [Wis. Stat.] § 19.31 is one of the strongest declarations of policy to be found in the Wisconsin statutes."31 ¶61 The legislature has instructed that the Public Records Law be construed "with a presumption of complete public access, consistent with the conduct of governmental denial of public access generally interest, an and only in is contrary exceptional case business. to may the The public access be denied."32 31 Zellner v. Cederburg Sch. Dist., 2007 WI 53, ¶49, 300 Wis. 2d 290, 731 N.W.2d 240. 32 Wisconsin Stat. § 19.31 states: In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and 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 No. ¶62 The Department of Justice argues 2010AP2313 that the legislatively established public policy does not apply to the instant case because the invoices are private records generated by a private entity and delivered to a private entity and do not relate to the affairs of government. The Department claims that other records subject to the Public Records Law are available for oversight in the present case and that the requesters have not explained why members of the public need the invoices from a private law firm and a private insurance company to exercise meaningful oversight of Deputy Haske's conduct, costs, or the County's legal liability coverage.33 other records does not, however, That a requester may seek prohibit a requester from seeking these records if they are accessible under Wis. Stat. § 19.36(3). ¶63 The Star-Times argues persuasively that its position comports with the public policy embodied in the Public Records 33 The Department of Justice seems to question the purpose of the request for the invoices. A request for records may not be refused because the requester "is unwilling . . . to state the purpose of the request." Wis. Stat. § 19.35(1)(i). The Star-Times' brief does claim a public purpose. It asserts that the invoices may inform the public about the use of taxpayers' dollars and give the public information about allegations of misconduct and how the allegations are handled. The Star-Times does not expand on this thesis, but it has not made the purpose of the request the linchpin of its argument. We therefore need not discuss the purpose of the Star-Times' request further. Compare Building & Construction Trades Council v. Waunakee Community School District, 221 Wis. 2d 575,587 n.4, 585 N.W.2d 726 (Ct. App. 1998), in which the records requester made the reasons underlying its request the linchpin of its publicpolicy argument to get access to records prepared and kept by a subcontractor. 27 No. Law. 2010AP2313 It points out that if Wis. Stat. § 19.36(3) does not apply to the invoices, it will not apply to other documents produced by the law firm while defending the County under the insurance policy, such as a memorandum of understanding or a settlement agreement the law firm negotiates. ¶64 The invoices were produced by the law firm during its representation of the County based on the liability insurance policy. The invoices therefore have a clear connection to the County's attorney-client relationship with the law firm and the liability insurance policy. ¶65 in the Accordingly, we conclude that access to the invoices present § 19.36(3) and case is comes within consistent with the the text of legislative Wis. Stat. policy of "making available those documents whose contents are related to the affairs of government, to the official acts of officers and employees, and to 'the conduct of governmental business.'"34 IV ¶66 Finally, we turn to prior court interpretations of Wis. Stat. § 19.36(3) to determine whether our interpretation and application of Wis. Stat. § 19.36(3) in the present case comport with the case law. It is important to acknowledge, as do the parties and the amici, that none of the prior cases is directly on point. 34 Schill, 327 We agree with the Department of Justice that Wis. 2d 572, op.). 28 ¶80 (Abrahamson, C.J., lead No. "[t]he attorney invoices at issue in the present 2010AP2313 case fall different fact somewhere between" the published decisions. ¶67 Each situation, published and none decision addresses presents the a tripartite attorney-client relationship relevant here. Still, an examination of the case law holding demonstrates that our is consistent with the principles set forth in the prior cases. ¶68 We WIREdata, recently Inc. Wis. 2d 397, v. discussed Village ¶¶79-89, 751 of Wis. Stat. Sussex, N.W.2d 736, § 19.36(3) 2008 in WI deciding in 69, 310 whether an authority may direct a requester to seek records about property assessments from an independent contractor assessor. In WIREdata, the authority contracted directly with an independent contractor to complete property assessments, and the contractor maintained the records. ¶69 The WIREdata court concluded that municipalities could not avoid liability under the Public Records Law by contracting with independent contractor assessors for the collection, maintenance, and custody of property assessment records.35 The court concluded that the property assessment records collected and kept by the independent contractor assessors were within the scope of the contract between the authority and the assessor and were therefore records within the purview of the contractors' records provision in Wis. Stat. § 19.36(3). 35 WIREdata, 310 Wis. 2d 397, ¶¶82, 84. 29 No. ¶70 The present case is consistent that guided the WIREdata decision. in the WIREdata case, the with 2010AP2313 the principles In the present case, unlike authority (the County) did not contract directly with the independent contractor (the law firm) who maintained the invoices. We have concluded in the present case, however, that the County had a contractual relationship (attorney-client) with insurance policy, insurance company. the a law contract firm based between Furthermore, on the pursuant the liability County to the and the liability insurance policy between the County and the insurance company, there was substantial direct interaction between the County and the law firm; both the law firm and the County had obligations to each other pursuant to the liability insurance policy regarding the conduct of the litigation and apparently both met their obligations. Thus, here as in WIREdata, the records requested were produced or collected under a contract between the authority and the contractor. The invoices are therefore subject to Wis. Stat. § 19.36(3). ¶71 The § 19.36(3) court in of appeals Journal/Sentinel has (which addressed we Wis. have Stat. discussed previously) and again in Machotka v. Village of West Salem, 2000 WI App 43, Construction 233 Wis. 2d 106, Trades Council 607 N.W.2d 319, v. Waunakee and Building Community & School District, 221 Wis. 2d 575, 585 N.W.2d 726 (Ct. App. 1998). Our ruling in the present case is consistent with both cases. ¶72 In Machotka, the Village of West Salem had sold municipal bonds to Robert W. Baird & Company, which then sold 30 No. the bonds to investors. was whether the 2010AP2313 The issue before the court of appeals contractors' records provision required the Village to provide a record requester with the names of the ultimate purchasers of the municipal bonds. The contract between West Salem and Baird did not provide that the Village would learn the identities of the ultimate bond purchasers, and it was not standard industry practice to reveal those names.36 ¶73 sales to collected The court of appeals concluded that Baird's record of ultimate under investors Baird's was contract not a with record the produced Village. or Baird contracted with the Village only to underwrite the bond issue, and anything else it did such as its sale of the bonds to others "was undertaken for Baird's own purposes and its own benefit, not the Village's."37 The records Baird kept of its sale of the Village's bonds to investors were kept for its own purposes, and were not in any way part of the contract with the Village. The records sought were created after Baird's contractual obligations to the Village were completed.38 ¶74 In contrast, in the present case the insurance company's contractual obligation to the County was to pay the County's attorney fees. The invoices at issue were produced by the law firm pursuant to its work for its clients, the County and the insurance company, under the liability insurance policy. 36 Machotka, 233 Wis. 2d 106, ¶2, n.2. 37 Id., ¶9. 38 WIREdata, 310 Wis. 2d 397, ¶87. 31 No. Inasmuch as the produced or collected authority (the invoices at issue pursuant County) and in to the the the present contract contractor 2010AP2313 case were between (the the insurance company), they are subject to Wis. Stat. § 19.36(3). ¶75 The court of appeals also addressed Wis. Stat. § 19.36(3) in Building & Construction Trades Council v. Waunakee Community School District, 221 Wis. 2d 575, 585 N.W.2d 726 (Ct. App. 1998), in construction which contract the with school a district general entered contractor who into in a turn entered into contracts with subcontractors to perform certain work on a school construction project. The issue before the court of appeals was whether the Public Records Law, Wis. Stat. § 19.36(3), considered in light of the prevailing wage law, § 66.293, required the school district to obtain payroll records from the subcontractors and provide them to a record requester. ¶76 More specifically, the question presented was whether Wis. Stat. § 19.36(3) was applicable when the subcontractors' records sought were not produced or collected under the school district's contract with the contractor, but rather were produced entirely under other contracts, namely the contracts between the contractor and the subcontractors, to which the school district was not a party. ¶77 For Wis. Stat. § 19.36(3) to apply, the court of appeals required the records requester to provide the court with authority that would "bridge the gap" between the requirement in Wis. Stat. § 19.36(3) that the school district disclose records produced or collected under its contract with the contractor and 32 No. 2010AP2313 the fact that the payroll records requested were the internal records of two entities that had entered into subcontracts with the contractor subcontracts to which the school district was not a party. ¶78 wage After careful and detailed analysis of the prevailing laws that govern payroll records and the enforcement methods of the wage laws, the court of appeals concluded that the wage laws regarding monitoring the prevailing wage rates and hours of work for employees of private employers public works projects did not "bridge the gap." working on The court of appeals ruled that for numerous reasons, the prevailing wage laws did not render the payroll records of the subcontractors within the purview of the contract between the school district and the contractor or the public policy of the Public Records Law. ¶79 The County argues that there is a gap between the requirement in Wis. Stat. § 19.36(3) that the County disclose records produced or collected under its contract with the insurance company (the liability insurance policy) and the fact that the invoices requested were records generated and submitted by the law firm to the insurance company on the basis of the contract between the law firm and the insurance company. conclude that there is no gap in the present case. were generated and relationship of pursuant the insurance to policy the submitted County, liability is a as a result insurance insurance contract 33 of policy. between the The invoices the company We tripartite and law The liability County and firm the No. insurance company. We thus conclude that our 2010AP2313 ruling today comports with the Building & Construction Trades case. * * * * ¶80 appeals. In sum, we affirm the decision of the court We use somewhat different reasoning, however. of We too conclude that the invoices are contractors' records under Wis. Stat. § 19.36(3). Our decision is based on the tripartite relationship of the County, the insurance company, and the law firm, all arising from the liability insurance policy. ¶81 The tripartite relationship arising from the liability insurance policy is as follows: (1) The liability insurance policy is the basis of a contractual relationship insurance company: between the County and the The insurance company agrees in the liability insurance policy to pay damages the County owes and to pay attorney fees incurred for the County's defense. (2) The liability insurance policy is the basis of a contractual relationship between the insurance company and the law firm: The insurance company retains the law firm, pursuant to the liability insurance policy, to represent the County and agrees to pay the attorney fees. The law firm that accepts the assignment undertakes the County's representation in accordance with the liability insurance policy. (3) The liability insurance policy is the basis of a contractual County: relationship between the law firm and the Pursuant to the liability insurance policy, the 34 No. 2010AP2313 law firm retained by the insurance company enters into a contractual attorney-client (agency) relationship with the County. ¶82 The liability insurance policy thus is the basis for contractual relationships between the County and the insurance company, as well as between the insurance company and the law firm, and the law firm and the County. ¶83 The invoices the billings for the law firm's legal work performed as the County's defense counsel and the insurance company's retained counsel were produced or collected in the course of the law firm's representation of the County and the insurance company under the liability insurance policy between the County and the insurance company. Because the liability insurance policy is the basis for the tripartite relationship between the County, the insurance company, and the law firm, and is the basis for an attorney-client relationship between the law firm and the County, we conclude that the invoices were produced or collected during the course of the law firm's representation of the County and the insurance company pursuant to the liability insurance policy; the liability insurance policy is a contract entered into by the County and the insurance company. Thus, the requirements of Wis. Stat. § 19.36(3) have been met and § 19.36(3) governs the accessibility of the invoices. ¶84 We affirm the decision of the court of appeals and remand the proceeding to the circuit court to order the County to make available to the Star-Times unredacted copies of the invoices. 35 No. By the Court. The decision affirmed. 36 of the court of 2010AP2313 appeals is No. ¶85 2010AP2313.pdr PATIENCE DRAKE ROGGENSACK, J. (concurring). the majority opinion in concurrence. I write I join separately reiterate a point that the majority opinion emphasizes: to our decision in this case does nothing to alter the rules governing attorney-client privilege, attorney work-product, or any other duties involving attorney confidentiality. See majority op., ¶¶14 15. The parties neither briefed nor argued these issues, and court the properly declines Accordingly, I respectfully concur. 1 to address these issues. No. ¶86 DAVID opinion T. permits PROSSER, J. Wisconsin's (dissenting). public records 2010AP2313.dtp The law majority to breach privileged communications, contrary to sound public policy and the text of the public records statute. The majority's assurance that the opinion "does not alter the rules governing confidentiality, product, or attorney-client any other rules privilege, protecting or lawyers' against work disclosure," majority op., ¶15, is unpersuasive given the opinion's analysis and its other declarations. serious negative Because I believe the opinion has ramifications for the practice of law, I respectfully dissent. I ¶87 Juneau County (the County) contracted with Wisconsin County Mutual Insurance Corporation (County Mutual) to provide public entity liability insurance for the County. insurance policy (or insurance contract), Under this County Mutual committed itself to pay damages that the County became legally obligated to pay as the result of a covered occurrence. The policy also covered attorney fees and costs related to defending a claim. The public entity liability policy was similar to insurance policies municipalities and acquired likely by parallel a multitude to the of liability Wisconsin policies acquired by innumerable non-public entities such as businesses and nonprofits. ¶88 In 2008 Juneau County Sheriff Brent Oleson suspended one of his deputies, Jeremy Haske, for alleged misconduct. action led to litigation, including 1 two lawsuits by This Haske No. against the sheriff. Mutual, to provide 2010AP2313.dtp The County called upon its insurer, County a defense. County Mutual assigned the Milwaukee law firm of Crivello Carlson, S.C. (Crivello Carlson) to provide representation. ¶89 In the midst of this litigation, the Juneau County Star-Times (Star-Times) made a public records request through the Juneau County Clerk. legal bills for 2008, The Star-Times requested access to any 2009, and 2010 submitted by Crivello Carlson to County Mutual for its representation of the County in the Haske matters. ¶90 The record shows that Attorney Michele M. Ford (Attorney Ford) of Crivello Carlson, after conferring with the County's corporation counsel, supplied the Star-Times with 27 pages of redacted legal invoices that it had submitted to County Mutual. These invoices were dated February 16, 2009; June 8, 2009; August 20, 2009; or September 22, 2009, respectively. The redacted invoices showed total hours in each reporting period; total attorney fees in each reporting disbursements in each reporting period. period; and other They revealed the days Attorneys Ford, John T. Juettner, and Linda J. Slawson worked on the cases but did not reveal the exact amount of time that an attorney put in on a given day. Most significantly, the invoices did not disclose what an attorney was doing on a given day. ¶91 Times Attorney Ford explained in a cover letter to the Star- that information "The that invoices is have privileged 2 been by redacted statute and to exclude common law. No. Access to records may be denied where there 2010AP2313.dtp is a specific statutory exemption to disclosure, Wis. Stat. § 19.36, or where there is a common law or public policy exception." ¶92 Attorney Ford cited Wis. Stat. § 905.03, the lawyer- client privilege statute. She also cited "the privileged status of attorney work product." "The presumption of access under [Wis. Stat.] § 19.35(1)(a) is defeated because the attorney work product qualifies under the 'otherwise provided by law' exception." ¶93 When the County declined to release additional information from the legal invoices, the Star-Times filed suit in Juneau County Circuit Court. ¶94 Adams County Circuit Judge Charles A. Pollex was sent to Juneau County to hear the case. He determined that while Juneau County was an "authority" under the public records law, "There is no evidence before the court that the information in question has been created by nor that it is being kept by Juneau County." ¶95 Because the unredacted invoices were not a Juneau County "record," the court next considered whether the legal invoices were a "contractor record" under Wis. Stat. § 19.36(3). The court concluded that: The invoices for attorney's fees rendered are, as far as this summary judgment record is concerned, a private matter between the Crivello Carlson law firm and Wisconsin County Mutual Insurance Corp. and any connection between the invoices and Juneau County's contract with Wisconsin County Mutual Insurance Corp. is tenuous at best. 3 No. 2010AP2313.dtp Thus, the court held that the invoices did not qualify under § 19.36(3). ¶96 invoices legal In addition, contain services billing the rendered records would, court descriptions detailed circuit of to Juneau County. therefore[,] reveal found the that nature of Producing the "the the these substance of lawyer-client communications and fall within the purview of the lawyer-client privilege." ¶97 The court of appeals reversed, rejecting the County's explanation of determinations. the redactions and the circuit court's It directed the circuit court "to order the County to make available to the Star-Times unredacted copies of the invoices." Juneau Cnty. Star-Times v. Juneau Cnty., 2011 WI App 150, ¶2, 337 Wis. 2d 710, 807 N.W.2d 655 (emphasis added). The majority now affirms this conclusion without directly discussing the lawyer-client privilege or lawyer work product. ¶98 In short, the majority determines that this case can be decided by its construction of Wis. Stat. § 19.36(3). II ¶99 Wisconsin Stat. § 19.36(3) reads as follows: Contractors' Records. Subject to sub. (12), each authority shall make available for inspection and copying under s. 19.35(1) any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority. This subsection does not apply to the inspection or copying of a record under s. 19.35(1)(am). 4 No. 2010AP2313.dtp ¶100 The crucial words in this subsection are "any record produced or collected under a contract entered into by the authority." ¶101 The relationships in this case may be diagrammed using the three corners of a triangle. In one corner of the triangle is Juneau County (the insured). In another corner is County Mutual (the insurer). There is indisputably a contract between these two "corners" and any record "produced" or "collected" "under" this contract is a "contractor record" under the statute, even though it was not created or kept by the County. ¶102 There is another corner to the triangle representing Crivello Carlson. Mutual. This contract is different from the County's insurance contract. is, we Crivello Carlson has a contract with County We do not know the provisions of this contract; that do not know the precise relationship between County Mutual and Crivello Carlson in terms of which Crivello Carlson attorneys will be involved in representing the public entities that County Mutual insures, how much the firm will be compensated for its services, when it will be compensated for its services, what sort of briefings Crivello Carlson must provide to the insurer, and what kind of invoices the firm must submit. We also do not know when this contractual relationship began. What we do know is that the County was not a party to this second contract and that the County did not select and did 5 No. 2010AP2313.dtp not have a right to select Crivello Carlson as its law firm.1 Crivello Carlson, by its own admission, was "assigned" to represent Juneau County.2 1 The Legal Expense Coverage Endorsement to the insurance policy states: "We [County Mutual] have the right and duty to select counsel to handle any matter for which you have given notice of your intent to seek legal expense coverage under Coverage D." This particular provision covered legal expense coverage related to "collective bargaining disputes, disputes with regulatory agencies or disputes involving any operation of principles of eminent domain, condemnation proceedings or inverse condemnation." The insurance policy provision relating to general legal defense and settlement reads as follows: We have the right and duty to defend any suit against the insured seeking monetary damages on account of bodily injury, personal injury, property damage or errors and omissions or any combination thereof, but: 1. The amount we pay for damages is limited as described in Section IV Limits of Insurance; 2. We may, at our discretion, investigate any occurrence and settle any claim or suit that may result even if the settlement amount is exclusively within the insured's deductible; and 3. Our right and duty to defend end when we have used up the Limit of Insurance in the payment of judgments or settlements under Coverages A, B, or C. This applies to both claims and suits pending at that time and those filed thereafter. Defense costs are payable in addition to the policy limit after any applicable deductible has been exhausted. 2 See letter from Michele Ford to Juneau County Star-Times dated February 10, 2010. 6 No. 2010AP2313.dtp ¶103 Crivello Carlson's invoices to County Mutual would not have been sent to records request. the County but for Star-Times public Thus, the invoices were not "produced" for the County or "collected" for the County. "collected" the under the County's They were "produced" or insurance contract only indirectly, raising the question whether an indirect connection is all the statute requires. ¶104 County Mutual must have contracts with providers for equipment and services County's insurance invoices are that are "under" the for in Thus, premiums. paid if Crivello County's insurance part by Juneau Carlson's contract, other invoices sent to County Mutual involving some interaction with the County may be "under" the insurance contract as well. This is why the Wisconsin Counties Association expressed concern that the court "suggests of that appeals an decision which authority's duty the to majority provide affirms access to contractors' records is almost limitless." ¶105 The majority opinion commences its analysis with the simple proposition that "(1) The liability insurance policy is the basis of a contractual relationship between the County and the insurance company[.]" Majority op., ¶11 (emphasis added). This proposition may be true, but it is also true that the liability insurance policy is a contract. to a contractual relationship. basis of" phraseology, A contract gives rise The majority opinion adopts "the however, so that it can treat other relationships in the triangle as functionally equivalent to the County's insurance contract. 7 No. ¶106 The insurance between majority's policy is the the insurance statement basis of company and that a "(2) 2010AP2313.dtp The contractual the law liability relationship firm[,]" id., ¶11 (emphasis added), is true only if the law firm's contractual relationship was initiated insurance policy. because of the County's liability This is not a fact of record. ¶107 The majority opinion also asserts that the attorneyclient relationship between Crivello Carlson and Juneau County is a third "contractual" relationship. be true. A lawyer-client relationship.3 not Id., ¶11. relationship This may not is a fiduciary It is often an agency relationship. necessarily a opinion's conclusory sweeping, and contractual they relationship. assertions have not to been the But it is The contrary supported majority are with overly Wisconsin precedent. ¶108 Once established and sanctified, the "tripartite" relationship described in the majority opinion is subject to application in other contexts. For instance, suppose an "authority" enters into a collective bargaining agreement (e.g., contract) with a public employee union. If the union later hires counsel to represent one of the authority's employees, must the union hired counsel? disclose the legal invoices it receives from Are these invoices contractor records because they are indirectly "under" the collective bargaining contract? 3 See, e.g., Sands v. Menard, Inc., 2010 WI 96, ¶53, 328 Wis. 2d 647, 787 N.W.2d 384; Berner Cheese Corp. v. Krug, 2008 WI 95, ¶41, 312 Wis. 2d 251, 752 N.W.2d 800. 8 No. 2010AP2313.dtp ¶109 It is not difficult to apply the principles of the majority opinion to other situations involving legal representation as well as other sensitive relationships loosely related to an authority's contract. ¶110 Thus, the pivotal question before the court is whether records related only indirectly to a contract entered into by an authority are records "under" that contract that must be disgorged by the authority pursuant to the public records law. ¶111 The amicus Wisconsin Department of Justice (the DOJ) urges the court to interpret "any record produced or collected under a contract" contract." It as a record contends "required that the or obligated "statutory by a language, legislative history, and public policy all support this result." ¶112 The DOJ further argues that the legislature knew how to draft broader language describing contractor records in Wis. Stat. § 19.36(3) than it eventually chose. The DOJ concludes that because the legislature chose not to use broad language in § 19.36(3), the contractor records provision does not include any record contractual "used in services." connection The DOJ with believes the performance that the court of of appeals decision wrongly adopts the "used in connection with" concept for the contractor records provision in § 19.36(3). ¶113 The DOJ points to legislative history in its analysis. The legislature created Wis. Stat. § 19.36(3) in ch. 335, Laws of 1981 (Chapter 335). Chapter 335 was based on amended 1979 Senate Bill 482 that failed to pass (SB 482). Drafting File, ch. 335, Laws of 1981, Legislative Reference Bureau, Madison, 9 No. Wis. Senate Bill provision like amended, added 482 the a did current defined not include a § 19.36(3). term, 2010AP2313.dtp contractor However, "maintains," personal data maintained by an authority.4 records SB as regard in 482, to This defined term used the broad concept of "used in connection with," similar to the broad interpretation of the contractor records adopted by the court of appeals in this case. provision Cf. Star-Times, 337 Wis. 2d 710, ¶¶17, 22 23. ¶114 Ultimately, Chapter 335 did not include the broadly defined term "maintains" as drafted for SB 482. In fact, the legislature rejected several attempts to amend Chapter 335 to include the broader "maintains" definition from SB 482. the DOJ concludes, the legislature knew how to Thus, describe contractor records in broad terms, chose not to use broad terms, and this court should not interpret the present contractor records provision in Wis. Stat. § 19.36(3) as broadly as the court of appeals did and as the majority opinion does now. ¶115 The majority's dismissal of the DOJ's argument is not compelling. public I would records law, adopt the recognizing DOJ's that interpretation the DOJ is of entitled the to great weight deference because of the experience of this agency charged with enforcing the law. 4 The engrossed version of 1979 Senate Bill 492 defined "maintains" to include data in "the legal custody of a person who performs or has performed services under contract to the authority agency and the data has been collected, stored, disseminated or used in connection with the performance of the services . . . ." 10 No. 2010AP2313.dtp ¶116 If the DOJ's interpretation were adopted, the legal invoices would not be contractor records under Wis. Stat. § 19.36(3). III ¶117 Juneau County has not relied on Wis. Stat. § 905.03, the statute on nondisclosure, lawyer-client in arguing privilege, its case in as this a basis its It court. for did, however, assert the privilege in the circuit court and in the court of appeals. ¶118 The majority seizes upon the County's strategy in this court as justification for privilege in its opinion. not discussing the lawyer-client Nonetheless, in ordering the County to turn over unredacted legal invoices under the public records law, the majority appears to be sending a message that the confidentiality of legal invoices may be in jeopardy under the public records law. If this is correct, it would be very bad news for "authorities" involved in litigation because it would depart from established precedent by treating "authority" parties different from non-authority parties under Wis. Stat. § 905.03.5 5 Wisconsin Stat. § 905.03(2) and (3) provide in part: 11 No. 2010AP2313.dtp ¶119 Our precedent is that "attorney billing records are protected by the lawyer-client privilege." Lane v. Sharp Packaging Systems, Inc., 2002 WI 28, ¶3, 251 Wis. 2d 68, 640 N.W.2d 788. legal They are confidential if they reveal the nature of services communications. ¶120 In professional provided or the substance of lawyer-client Id. Lane, the relationship court is observed established, that all "once the communications, oral and written, between attorney and client are privileged from production statute." excluding those exceptions outlined in the Id., ¶21 (quoting State ex rel. Dudek v. Circuit Court for Milwaukee Cnty., 34 Wis. 2d 559, 580, 150 N.W.2d 387 (1967)). However, the court added that the privilege should be contained so that it does not extend beyond its core rationale of ensuring client. candor and Lane, 251 Wis. 2d full disclosure between lawyer and 68, ¶21. (2) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: between the client or the client's representative and the client's lawyer or the lawyer's representative; or between the client's lawyer and the lawyer's representative; or by the client or the client's lawyer to a lawyer representing another in a matter of common interest; or between representatives of the client or between the client and a representative of the client; or between lawyers representing the client. (3) Who May Claim the Privilege. The privilege may be claimed by the client, . . . The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. The lawyer's authority to do so is presumed in the absence of evidence to the contrary. 12 No. 2010AP2313.dtp ¶121 Hence, legal invoices are not inherently beyond the reach of a public records request, especially when the request is focused on fee arrangements involving the expenditure of tax dollars. nature of But when a request seeks to uncover details about "the legal services provided," id., ¶37 (citing United States v. Horn, 976 F.2d 1314, 1316-17 (9th Cir. 1992), and Real v. Cont'l Group, Inc., 116 F.R.D. 211, 213-14 (N.D. Cal 1986)), or "the substance of lawyer-client communications," Lane, 251 Wis. 2d 68, ¶39, the request becomes highly sensitive and may require in camera review by a court, as happened here.6 ¶122 In my view, the County, County Mutual, and Crivello Carlson all had the right to assert the lawyer-client privilege. County Mutual and Crivello Carlson had an obligation to do so. ¶123 The lawyer-client client (the County). was. privilege may be claimed Wis. Stat. § 905.03(3). by the In this case it The client's decision binds others who are bound up in a confidential relationship with the client. ¶124 County Mutual had and has a contractual and fiduciary relationship with the County and is a "representative of the lawyer" as defined in Wis. Stat. § 905.03(1)(c) and listed in Wis. Stat. § 905.03(2). true, the insurer's If the latter categorization were not ability to protect its insured confidential communications would become hollow. client's In support of this categorization, the insurer/"representative of the lawyer" 6 The court of appeals acknowledges that "many of the redacted portions are descriptions of legal services rendered." Juneau Cnty. Star-Times v. Juneau Cnty., 2011 WI App 150, ¶41, 337 Wis. 2d 710, 807 N.W.2d 655; see also id., ¶45. 13 No. 2010AP2313.dtp monitors the lawyer's expenditures, pays the lawyer's bills, and plays a role in any settlement. ¶125 The stakes in this dispute are obvious. Times already has information on the names of The Star- the County's lawyers, the number of hours they worked, and the amount they were paid not by the County with County tax dollars, but by the County's insurer. What the Star-Times wants are "detailed descriptions of the nature of the legal services rendered" and "the substance of [the] lawyer-client communications." See ¶96, supra. ¶126 Any substance are court that not present determines in the that subject these matters invoices must of be prepared to rule that the circuit court's findings were clearly erroneous. ¶127 Deciding this case without discussing the lawyer- client privilege in relation to the limiting language of the public records law (in Wis. Stat. §§ 19.31, 19.35(1), 19.36(1), and 19.85(1)(g)) casts a dark shadow over the lawyer-client privilege and other privileges in Chapter 905. ¶128 An magnify it. changes in appellate court should reduce uncertainty, not The likely result of this case will be to force billing practice. In the future, legal invoices related to an "authority" may be sanitized so that they provide insurers and public entity clients with no information except the hours worked and the amount owed as well as an invitation to discuss the details orally. ¶129 For the foregoing reasons, I respectfully dissent. 14 No. ¶130 I am authorized to state that 2010AP2313.dtp Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this opinion with the caveats expressed in Justice Ziegler's dissenting opinion. 15 No. ¶131 ANNETTE KINGSLAND ZIEGLER, J. 2010AP2313.akz (dissenting). I join Justice Prosser's dissent and write separately to clarify my position regarding Section III of that dissent as it pertains to my interpretation of the majority opinion and to clarify the extent to dissent. which I join that portion of Justice Prosser's I depart from the portion of the dissent that infers the majority disclosed opinion regardless has concluded of the that the records attorney-client must be privilege. I dissent from any such inference in the majority opinion. ¶132 Juneau County has not relied on Wis. Stat. § 905.03, the statute regarding lawyer-client privilege, in its arguments before this limitation court. The the opinion's of majority recognizes application the because failed to discuss attorney-client privilege. potential the County While the majority opinion makes some broad statements regarding an attorney-client relationship being created between the law firm and the County, it does so noting that the County failed to argue that the attorney-client short, the privilege majority protects opinion does it from not disclosure. decide whether In the attorney-client privilege may bar production of these documents. Thus, the majority opinion could have limited usefulness as it does not address a scenario where attorney-client privilege is at issue. ¶133 The County could have argued that the attorney-client privilege bars access to these billing records, and the majority recognizes that this case is decided without consideration of that issue. In fact, the majority states: "Our ruling in the 1 No. 2010AP2313.akz present case does not alter the rules governing confidentiality, attorney-client privilege or lawyers' work product, or any other rules protecting against disclosure. with regard to these rules. No issue has been raised We therefore do not decide which court the circuit court or the court of appeals reached the correct result regarding redaction of the invoices." Majority op., ¶15. Hence, the majority opinion is limited insofar as it does address not decided) (because disclosure of it was documents not where argued, the briefed, or attorney-client privilege is an issue. ¶134 For the foregoing reason I write separately to clarify my position regarding Section III of Justice Prosser's dissent. ¶135 I am authorized to state GABLEMAN joins this dissent. 2 that Justice MICHAEL J. No. 1 2010AP2313.akz
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