Legal Update: Supreme Court Case Addresses Counties’ Duty to Provide Access To Contractors Records Under The Public Records Law
Counties regularly provide access to their own records under the Wisconsin Public Records Law, Wis. Stat. §§ 19.31-19.39, but a county’s duty to provide access goes beyond just its own records. The Public Records Law also requires an “authority,” such a county, to provide access to contractor’s records under some circumstances.
Section 19.36(3), Wis. Stat., requires counties to make available for inspection or copying “any record produced or collected under a contract” entered into by the county to the same extent as if the record were maintained by the county. A county cannot, therefore, avoid its responsibilities under the Public Records Law by shifting a record’s creation or custody to an agent.1 The county remains responsible for providing access to contractors’ records and is liable for a contractor’s failure to comply.2
In order for counties to comply with their duty to provide access to contractor’s records, it is important to understand what records are subject to disclosure under § 19.36(3). The recent supreme court case of Juneau County Star-Times v. Juneau County, 2013 WI 4, provides some insight.
In Juneau County, the Wisconsin Supreme Court was asked whether attorney invoices sent to Juneau County’s insurer for legal services provided to Juneau County (County) were contractor’s records under § 19.36(3). In a 4-3 decision, the court concluded that the invoices were contractor’s records under the insurance contract between the County and the insurer.
The case involved litigation against the County relating to an employee of the Juneau County Sheriff’s Department. The County’s defense was conducted by the Crivello Carlson law firm (the law firm), which was retained to represent the County by the County’s insurance company, Wisconsin County Mutual Insurance Corporation (the insurance company).
The law firm prepared and sent to the insurance company invoices (itemized bills) for its legal services rendered pursuant to the liability insurance policy in the defense of the County. Relying on the Public Records Law, the Juneau County Star–Times sought access to the invoices which were provided in redacted form. The Star-Times filed suit to get access to unredacted copies of the invoices.
The circuit court concluded that Wis. Stat. § 19.36(3) did not apply to the invoices because the County had not contracted with the insurance company for purposes of 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 court further concluded that even if § 19.36(3) applied, the invoices were properly redacted to protect the attorney-client privilege.
The court of appeals reversed the judgment of the circuit court and remanded the matter to the circuit 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 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.
The supreme court affirmed the court of appeals but under different reasoning.3 The court began its analysis by exploring the meaning of the key words in Wis. Stat. § 19.36(3): “produced,” “collected,” and “under.” The court interpreted the words “collected,” “produced,” and “under” in Wis. Stat. § 19.36(3) in their commonly understood meanings. The court then applied the commonly understood meanings of the words in the context of the factual setting of the case. Critical to the court’s holding was the fact of the tripartite relationship of the County, the insurance company, and the law firm based on the liability insurance policy. The court described this tripartite relationship as follows:
The liability insurance policy is the basis of a 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.
Juneau County, 2013 WI 4, ¶ 44.
The court concluded the invoices were produced or collected under the insurance liability policy based upon the unique tripartite relationship:
The invoices relating to the County’s defense … 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 established a contractual, attorney-client relationship between the law firm and the County.
Id. at ¶ 52.
The court distinguished two previous court of appeals cases applying § 19.36(3) that found the contractor’s records at issue were not produced or collected under the contract with the authority. In the first case, Machotka v. Village of West Salem, 2000 WI App 43, the court of appeals found that the records at issue (names of the ultimate purchasers of municipal bonds) were created for the contractor’s own purposes and for its own benefit, and were not part of the contract with the Village. In contrast, the supreme court found that the invoices at issue were produced by the law firm pursuant to its work for its clients, the C County and the insurance company, under the liability insurance policy. Juneau County, at ¶ 72.
In the second case, Building & Construction Trades Council v. Waunakee Community School District, 221 Wis.2d 575, 585 N.W.2d 726 (Ct.App.1998), the court of appeals found that a subcontractor’s payroll records were not contractors records under § 19.36(3) because they were produced under a contract between the contractor and the subcontractors to which the school district was not a party. In contrast, the supreme court found the invoices were produced under the liability insurance policy between the County and the insurance company based upon the tripartite relationship of the parties. Juneau County, at ¶ 79.
The impact of the Juneau County decision on counties is limited by the facts of the case. The court clearly sought to ground its decision in the unique contractual relationship created between a county, an insurance company and a law firm under a liability insurance policy. In a more traditional contract scenario involving only two parties—the county and the contractor— the application of § 19.36(3) may turn on whether the records were required to be produced or collected by the contract, as the attorney general argued in the case. See id., at ¶¶ 37-39. If the contractor’s records are created for the contractors own purposes or benefit or created pursuant to a separate subcontract to which the county is not a party, then it is less likely the records are subject to disclosure under § 19.36(3). As the supreme court makes clear in is opinion, the analysis of whether a record is “produced or collected under a contract” will depend on the facts of each case and the context of the particular contract.
1 Journal/Sentinel, Inc. v. Sch. Bd. of Sch. Dist. of Shorewood, 186 Wis. 2d 443, 453, 521 N.W.2d 165, 170 (Ct. App. 1994).
2 WIREdata, Inc. v. Vill. of Sussex, 2008 WI 69, ¶ 84, 310 Wis. 2d 397, 751 N.W.2d 736.
3 The issue of whether the redactions were proper was not before the supreme court. The court explicitly stated that its decision does not alter the rules governing confidentiality, attorney-client privilege, or lawyers’ work product, or any other rules protecting against disclosure. Juneau County, at ¶ 15.