The Volokh Conspiracy

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Volokh Conspiracy

Secret Litigation Over Secret City Council Records

A very unusual Wisconsin case.


From the Milwaukee Journal Sentinel (Bruce Velmetti):

A Racine County judge said he's only sealed one case in his career. The case he chose to hide from taxpayers and Racine city residents? A petition for access to public records.

The unusual case, now on appeal but also absent from the Court of Appeals web-based index, has only come to light because a maverick Racine Common Council member [Sandy Weidner] got tired of what she calls growing secrecy and concentrated power in her local government.

"To me, it's a huge issue," said … Weidner. "I'm willing to defy the judge's order that it's sealed." …

Weidner has represented Racine's 6th District for nearly 20 years. Last year, she was running for mayor and being critical of the status quo, when, in August, the city attorney, Scott Letteney, requested all 15 council members to attend a meeting of the Executive Committee, normally composed of the city attorney, mayor, heads of three standing committees and one other At the closed session, Weidner says, Letteney gave a PowerPoint presentation of about 30 slides, most of which were of emails she had sent to people outside city government from her city email account. Some were of emails two other aldermen sent.

Letteney implied that the emails contained confidential information and was seeking the committee's vote to seek an advisory opinion from the city's Ethics Board on whether the aldermen's actions violated the city's ethics ordinance.

"He wanted to publicly humiliate me. Said he's tried everything in his power to 'monitor my behavior,' " she said. The problem, she said, is that nothing she sent to constituents, in her experience, was confidential.

"To him, anything that comes into or out of the city attorney's office is covered by the attorney-client privilege," she said, a far more expansive interpretation than the law allows.

Weidner sought copies of the presentation, and filed a Wisconsin Open Records Law case to get them—and then, Judge Eugene Gasiorkiewicz sealed the case, in his words, "because of the nature of the action. It's one that shouldn't be open. I made a public policy determination." And now Widner has apparently gotten a sealed motion from the city, which will be heard tomorrow morning, asking that she be sanctioned for violating the secrecy order.

Seem pretty sus, as kids these days put it. Even if there is some confidential material, both state law and First Amendment law generally calls for it to be redacted (with as few redactions as possible), rather than for the whole case to be sealed top to bottom: "The public cannot monitor judicial performance adequately if the records of judicial proceedings are secret." Jessup v. Luther (7th Cir. 2002). I hope the case will be promptly unsealed, so we can see what's really going on.