Open meetings laws often include exceptions in order to discuss personnel matters. Wisconsin Supreme Court recently held that information discussed during such a closed meeting may still be available to parties in a lawsuit. Sands v. Whitnall School District, Case No.2005AP1026 (Wis. July 11, 2008) http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=33385

Briefly, the majority says that the default under Wisconsin law (which is similar to the federal law) is to disclose information requested in discovery, unless a privilege applies: “The right to discovery is an essential element of our adversary system. . . . The quest for truth in each case, in turn, demands that we allow litigants to build complete records, investigating and preparing their cases thoroughly before presenting their cases to fact-finders. As such, we are even more loath to impose limitations upon discovery than we are to limit public access to government records.”

The decision also explains why privileges against disclosure are the exception, not the rule: “The Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), was emphatic in ruling that privileges must not be lightly created or expansively construed, being in derogation of the search for truth. The decision dramatically illustrated that even the confidential communications of the President of the United States are not automatically privileged and shielded from discovery requests.” It also explains how confidentiality differs from privilege. Finally, the court says that the policies of both discovery and open meetings laws “reflect our State’s policy of a strong presumption in favor of openness and access.”

Those whose work involves open meetings laws or who are interested in understanding more about discovery and privileges will benefit from reading the full case. The majority and dissent do a nice job of clearly explaining the law and policies related to discovery, open meetings laws, and privileges.