WI Supreme Court looks at open records vs. attorney-client privilege.

Byline: Tony Anderson

The state Supreme Court is considering whether a zoning board of appeals can assert attorney-client privilege or whether documents sent between the board chair and the municipal attorney are subject to open records laws.

During Feb. 12 oral arguments, petitioners in the case, who had been denied a zoning variance, maintained that a zoning board of appeals is required to maintain an air of openness. Therefore, the documents should be accessible giving them a better understanding of how the board made its decision.

Representatives of the town and several municipal associations hold that the documents are subject to attorney-client privilege. They fear that diminishing that privilege would have a chilling effect on communications between municipal bodies and their attorneys.

Request for Variance

According to court documents, the issue arises from a case involving GPS Inc. and the Town of St. Germain. GPS had approached the town seeking a permit to build a single-family home. However, the town required a 75-foot setback and the proposal only would have resulted in a 50-foot setback. The request was denied.

GPS then applied for a variance. A public hearing on the request was held in December 1999 and a second meeting took place in January 2000. During the January meeting the board chairman circulated an information package including a proposed order prepared by the board's attorney. The board unanimously denied the variance request without any discussion among board members.

GPS then made a request under Section 19.31 of the Wisconsin Statutes, providing a right to review records. The town provided some of the records, but maintained that three of the documents circulated between the board chair and the municipal attorney were subject to attorney-client privilege.

GPS petitioned for a writ of mandamus to compel the Town to release the three documents. The first document was a letter from the board chair to the board's attorney. The second was a memorandum from the board's attorney citing variance requirements and discussing the facts of the case. The final document included drafts of proposed findings of face and conclusions of law regarding the specific requests for variances. The town maintained the documents were protected by attorney-client privilege.

The circuit court judge determined that the zoning board of appeals could not avoid public scrutiny of its deliberations and its reasoning by placing them in written...