Open Records Concerns in Milwaukee County

As part of my job I've filed quite a few open records requests to a variety of public officials over the years.  I've not yet perfected the art but I believe that I have a fairly good understanding of the major parameters.  That is why I was concerned to read that the Milwaukee County Executive's office was requesting a $1,000 fee to simply search for records requested by the Milwaukee-based newspaper the Shepherd Express.  As I thought about this issue, I recalled seeing an internal Milwaukee County email that equally concerned me in the area of open records.

In a March 2012 email chain various Chris Abele Administration officials are discussing a draft response to Supervisor Jursik on an issue.  In a March 2, 2012 reply to that email chain Milwaukee County Corporation Counsel Kimberly Walker makes the following comment (scroll to bottom of doc to see it):

"Please see the following below... my two-cents worth.  FYI - trying to play this forward in my mind.  With the exception of my email, this email string will not be exempt from open records requests.  Should you wish to preclude its disclosure, please send additional comments, revisions etc., only to me with the names of others who should see it, and I can forward. Just a thought."

This comment struck me as being odd and it almost seemed like she was suggesting a way to conduct public business in a way that would get around open records requirements.  I don't know if the administration ever implemented this policy or how many open records requests weren't truly fulfilled because of it.  But it is my understanding that communications to the corp counsel are not covered by attorney client privilege simply because they are sent to or from her inbox.

I'm not an attorney and I certainly could have been misunderstanding something so I sent an email seeking clarification from the Corp Counsel on exactly what she meant by her emailed statement.  Unfortunately her response didn't really clear up anything at all.  Here is the primary portion of her response to my inquiry:

"Specifically, I was addressing a question related to the privilege of communications directed from or to Corp Counsel, in contrast to group communications between clients that merely include Corp Counsel, or group communications between clients."   

I didn't understand that answer and it didn't really tell me anything about the real meaning of her March 2012 guidance.  So I contacted Bill Lueders, President of the Wisconsin Freedom of Information Council.  He confirmed that the Corp Counsel's initial comments also caused him some concern.  He further observed that her follow-up comments were "more confusing than enlightening."  He went on to make the following statement:

"I am troubled by her response. Communications to and from corp counsel are not automatically protected. The public is entitled to know what her office does and to whom it communicates as much as for any other office. Attorney client privilege pertains to those communications in which the office is providing or being asked to provide legal advice, not anything that comes its way or whenever it feels like. I don't see that she is making those distinctions in these communications; I do hope her office is making them in practice."

It seems to me that if both Bill and I are concerned about these potential open records policies, then perhaps someone with the ability and the influence should closely examine the matter.  If the methods described in the March 2012 email are/were in fact being used, the Milwaukee County Corp Counsel should provide a complete and thorough explanation and justification for it.  If she can't then perhaps she should seek some specific guidance from the Attorney General's office on this subject. The idea of open government and open records is far too important to do anything less.  The public has the right to know that their county government is being fully and totally transparent with them.