Recently the Wisconsin Supreme Court issued a decision that could have a far reaching impact on the discussions that elected officials have in closed session. In Sands v. Whitnall School District, 2008 WI 89 (July 11, 2008) , the Supreme Court concluded that the discussions and action taken by elected officials in closed session are subject to disclosure in litigation. Although the Sands case involved an employment issue, this decision is much broader and could impact the discussion and decisions reached by a government body in closed session for any reason, if that action later leads to the filing of a lawsuit. This is not good news for school districts, and may have a significant impact on the freedom and candor which normally accompanies a meeting in closed session.
History of the Case
Barbara Sands was hired to run the gifted and talented education program for the Whitnall School District. At two closed sessions on April 29, 2002 and May 13, 2002, the School Board discussed various issues related to Sands’ employment. After the second of these closed sessions, the Board returned to open session and voted not to renew Sands’ employment contract. Two years later, Sands filed a lawsuit claiming that she was denied the statutory protections of the administrator nonrenewal statute. Specifically, Sands alleged that she was not given proper notice of the decision not to renew her contract, and as a result, she remained employed and her contract “rolled over” for two more years. During the discovery phase of the litigation, Sands issued interrogatories requesting the following information:
- Identify each person who spoke during the deliberations.
- Describe the substance of what each person said about whether to renew Sands’ contract.
The District refused to answer either of these interrogatories, claiming the information was privileged under the Open Meetings Law and under the “deliberative process privilege.” Sands filed a motion to compel. The circuit court ordered the release of the information. The court of appeals reversed and held that discussions which occurred during the closed sessions are protected from disclosure under the Open Meetings Law and not discoverable in litigation.
The Supreme Court Decision
The first issue the Court had to address was whether this case addressed an issue under the Open Meetings Law or the statutes on litigation and civil procedure. While the Court decided this case under the civil procedure statutes, the Court also ruled on whether the Open Meetings Law would “trump” a party’s right to discovery. In recognizing that the purpose of litigation is truth and justice, the Court concluded that the scope of allowable discovery is extremely broad, even when that information is confidential. More importantly, the Court concluded that:
.. . . just because a meeting may be kept closed from the public, even if some of the meeting contents are thereby “confidential” in some sense of the word, it does not necessarily follow that the District has a legal privilege to refuse compliance with discovery requests.
The Court reached this decision for two reasons. First, the Legislature could have created a privilege protecting the contents of closed session from disclosure in litigation and they did not. Second, the language of the Open Meetings Law does permit closed sessions to occur, but does not require them. Thus, the Court refused to create a mandatory privilege protecting the contents of closed sessions when the decision to enter into a closed session is permissive and not mandatory.
In the alternative, the District argued that the discussion held in closed session should be privileged as a “deliberative process privilege” which prohibits the compelled disclosure of the School Board’s deliberations and decision making process. The Court rejected this argument, holding that Wisconsin has never recognized such a privilege and the Court was not willing to do so in this case.
Conclusion
The Sands decision is likely to have a significant impact on government bodies and how they engage in discussion and decision making over controversial, sensitive issues. Certainly, some elected officials will be reluctant to speak candidly and openly in closed session if they believe their comments could become the subject of later litigation. The Court did acknowledge this potential harm, but asserted that there are steps the government body can take to “manage” the disclosure of confidential information. First, the government body can object to discovery requests that are irrelevant, annoying, embarrassing, oppressive, unduly burdensome or unduly expensive. Second, the government body can seek a protective order from the court, which would allow the adverse party access to confidential information, but not allow it to be released publicly where it could have a harmful or detrimental impact. Because these options have always been available to government bodies, they do not appear to be much protection for the disclosure of very sensitive and/or controversial information. Each government entity will have to review its practices and procedures for convening in closed session, with the understanding that what is discussed in closed session is now subject to disclosure in litigation.
If you would like further information on this new decision, or would like to discuss its impact on your elected officials, please contact your Davis & Kuelthau attorney.