Wisconsin Supreme Court Rules Closed Session Minutes are Subject to Disclosure
2008-10/07 Jeffrey T. Jones

We are providing this memorandum to alert you to a recent court decision which may impact upon the detail you include in minutes of your elected officials’ closed session meetings. 

On July 11, 2008, the Wisconsin Supreme Court ruled in Sands v. Whitenall School District, 2008 WI 89 (7/11/08), that not all governmental closed session discussions are automatically privileged and that they may be subject to disclosure in litigation.  In Sands, a former employee sued the Whitenall School District over the non-renewal of her contract.  She then sought information about the School Board’s closed session discussions regarding her employment.  No attorney was present during the Board meetings.  The School District declined to answer the employee’s questions, citing the fact that the discussions were held in closed session and were therefore privileged.  The Milwaukee County Circuit Court ordered the District to provide answers.  The Wisconsin Court of Appeals reversed that order, agreeing with the District that the language of Wisconsin’s Open Meetings law and its closed session exemptions indicated the legislature’s intent to protect the confidentiality of closed session discussions.

On appeal, the Wisconsin Supreme Court concluded that the discussions should be disclosed as part of the discovery process that pertains to litigation.  The Court rejected the School District’s argument that the Open Meetings law included an implicit privilege protecting closed session discussions from disclosure.  In reaching its decision, the Court emphasized Wisconsin’s strong policy of open government and the critical role discovery plays in our legal system.

However, the Court cautioned that its ruling did not mean every discovery request for information discussed in closed session must be granted.  On the contrary, governmental bodies are still able to assert other privileges contained in the discovery laws.  For example, the attorney-client privilege.  Also, the Court recognized that discussions held in closed session may involve sensitive information that may require the issuance of a court protective order, sealing of the record, or a court review of the information requested prior to its disclosure. 

In light of the Sands decision, elected officials and administrative employees should not assume that closed session discussions and closed session minutes will not someday be disclosed in litigation.  Care should be taken when preparing closed session minutes, with the presumption that the governmental body may be required to disclose the minutes at a later date as part of the litigation process.  Keep in mind that the Open Meeting law does not require that closed session minutes reflect all details of what occurred in the closed session.  Of course, all motions adopted in closed session must still be recorded. 

For further information, please contact attorney Jeff Jones who prepared this article, or any of the attorneys within the Employment, Labor & Benefits Practice Group of Ruder Ware:  Ron Rutlin, Dean Dietrich, Mary Ellen Schill, Christopher Toner,  or Sara Ackermann.

© 2008 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.
This document provides information of a general nature regarding legislative or other legal developments. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed.