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April 15,2011
Anne L. Weismann
Citizens for Responsibility and Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
As a final response to your February 23, 2011 open records request, we are providing XXX
pages of responsive records. These records are being provided in electronic format as attached
PDF files per your request on March 31, 2011. You will notice my name, instead of the
sender/recipient, is at the top of certain emails.This is because I gained access to those records
and printed them through my computer.
In response to our partial response on March 31, 2011, you wrote a follow-up letter dated April
1, 2011 raising concerns about our reliance on attorney-client privilege to deny disclosure of
certain records. You raised two specific questions in regards to the privilege. First, you
challenged the assertion that the attorney-client privilege prohibits disclosure of certain
documents. You raised accurate points about the waiver or loss of the privilege. However, in
this case, the records custodian has not waived or otherwise lost the privilege to these
communications. Second, you requested a privilege log. A records custodian, however, has no
duty to produce a privilege log.
In light of your questions, I'd like to provide a fuller justification for our nondisclosure of certain
documents. The attorney-client relationship is revered under our laws. Protection of
confidential communications and the attorney's work is a highly valued public policy reflected
throughout our laws. We are denying access to privileged communications, confidential work
product, and other identifying information about these protected records under the Wis. Stat. §
19.35(1)(a) balancing test and the attorney-client privilege.
Wisconsin case law has deemed that the attorney-client privilege alone is sufficient grounds to
deny access to records that respond to a public records request. George v. Record Custodian,
169 Wis. 2d 573, 582, 485 N.W.2d 460, 464 (Ct. App. 1992); Wis. Newspress, Inc. v. Sch. Dist.
of Sheboygan Falls, 199 Wis. 2d 768, 782-83, 546 N.W.2d 143, 148-49 (1996). The attorney-
client privilege is "no mere evidentiary rille. It restricts professional conduct." Armada Broad,
Furthermore, the Governor's Office has a right to the same sacros~nct attorney-client
relationship that the public expects with their' attorneys. The principle i of client-lawyer
confidentiality is codified in SCR 20:1.6(a) which reads:
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A lawyer shall not reveal information relating to the representation of a client
unless the client gives informed consent, except for disclosures that are impliedly
authorized in order to carry out the representation. (emphasis added)
The language in the Wisconsin confidentiality rule;is taken directly from the Model Rules of
Professional Conduct. The ABA Comment on the conesponding Model Rule 1.6(a) expl&ins the
confidentiality requirement for attorneys. 'The principle of client-la r confidentiality is
supported by the attorney-client privilege. and the attorney work prod tfine. Model Rules
of Prof! Responsibility R. 1.6 cmt. (1983). ' Client~lawyerc tiality has broader
applicability than the situations where evidence is sought from ail a through compulsion
of law. Id. The confidentiality applies to all infOlTIlation,whatever the source, relating to the
representation of a .client, not just those mattel:s communicated in confidence from the client. Id.
An attorney is prohibited from disclosing such information unless authorized by the 'client. Id.
"This prohibition also applies to disclosqresby a lawyer that do not in themselves reveal
protected inform&tion but could reasonably lead to the discovery ofsuch information ...." Id.
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In considering the public p~licy evident in SCR 20:1.6(a) within the public records balancing
test, I have determined that disclosure of these records is not in the public's interest. The legal
counsel for the Governor's Office deals with many sensitive subjects, and revealing the topics or
extent of legal inquiry compromises the attorney-client relationship. The Governor and the
Office of the Governor have the right to and expectation of an attorney-client relationship that
allows for candid legal advice. Broadly, under the public records balancing test, the public's
interest in not compromising this unique relationship by making public privileged
communications and confidential work product outweighs the public's interest in disclosure of
these records. Specifically, knowledge of the time and extent of legal communications reveals
the amount of work performed on any subject. If this knowledge is open to the public, the legal
advice the Governor's Office receives would not be as candid or complete. Under the public
Clearly, Wisconsin has adopted a strong public policy to protect the sanctity of the confidential
relationship between attorneys and clients. As laid out above, the expectations of confidentiality
throughout the client-lawyer relationship are codified throughout the Supreme Court ethics rules,
evidentiary laws, and Wisconsin case law. The Governor's Office deserves the same expectation
of confidential legal advice and communications as the public receives with their attorneys. For
these reasons, under the case law exception for attorney-client privilege and the Wis. Stat.
§ 19.35(1)(a) balancing test, we are denying access to privileged communications, confidential
work product, and other identifying information about these protected records.
Pursuant to Wis. Stat. § 19.35(4)(b), these determinations are subject to review by mandamus
under Wis. Stat.'§ 19.37(1) or upon application to a district attorney or the Attorney General.
Finally, our total location time ended totalling six hours. Our total redaction time was
approximately six hours. Pursuant to Wisconsin case law and our posted policy, the Governor's
office charges for redaction costs. These costs total in excess of the prepayment you provided on
April 1, 2011. However, we are waiving all costs that exceed that payment.'
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Thank you for contacting the Office ofGo veinor Scott Walker.