SCOTT WALKER

OFFICE OF THE GOVERNOR P.O. BOX 7863

STATE OF WISCONSIN MADISON, WI 53707

April 18, 2011

Attorney Robert Dreps

One East Main Street, Suite 500
P.O. Box 2719
Madison, WI 53701-2719

Anne L. Weismann
Citizens for Responsibility and Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005

Dear Attorney Dreps and Ms. Weismann,

As a final response to your February 23, 2011 open records request, we are providing 930 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 rule. It restricts professional conduct.” Armada Broad,

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Inc. v. Stirn, 177 Wis. 2d 272, 279 n.3, 501 N.W.2d 889, 893 n.3 (Ct. App. 1993), rev'd on other
grounds, 183 Wis. 2d463, 516 N.W.2d 357 (1994); see also SCR 20:1.6(a). None of these
clients have given written consent or otherwise waived that privilege, so those communications
are protected from disclosure by the attorney-client privilege.

Additionally, the public’s interest in the confidentiality of an attorney’s mental impressions,

conclusions, opinions, areas of research, or legal theories outweighs the public’s interest in
disclosure of these records. Therefore, research prepared by the Governor’s Office legal counsel
with potential litigation in mind is not being released. The likelihood of litigation of these
matters was supported by the fact that the subjects of your request were raised in a complaint to
the Government Accountability Board and there was a great deal of public debate about these
issues. “The general policy against invading the privacy of an attorney's course of preparation is
. . . well recognized and . . . essential to an orderly working of our system of legal procedure . . .”
State ex rel. Dudek v. Circuit Court for Milwaukee County, 34 Wis.2d 559, 588, 150 N.W.2d
387, 403 (1967). The attorney work product doctrine is now codified in Wis.
Stat. § 804.0l(2)(c)1.

Furthermore, the Governor’s Office has a right to the same sacrosanct attorney-client
relationship that the public expects with their attorneys. The principle of client-lawyer
confidentiality is codified in SCR 20:1.6(a) which reads:

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 corresponding Model Rule 1.6(a) explains the
confidentiality requirement for attorneys. The principle of client-lawyer confidentiality is
supported by the attorney-client privilege and the attorney work product doctrine. Model Rules
of Prof’l Responsibility R. 1.6 cmt. (1983). Client-lawyer confidentiality has broader
applicability than the situations where evidence is sought from an attorney through compulsion
of law. Id. The confidentiality applies to all information, whatever the source, relating to the
representation of a client, not just those matters 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 disclosures by a lawyer that do not in themselves reveal
protected information but could reasonably lead to the discovery of such information . . .” Id.

In considering the public policy 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

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records balancing test, I have determined that the public’s interest in protecting the
confidentiality of the attorney-client relationship and the public’s interest in the Governor
receiving the best advice possible outweigh the public’s interest in disclosure of further
information about these privileged communications.

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.

Thank you for contacting the Office of Governor Scott Walker.

Sincerely,

Nate Ristow
Assistant Legal Counsel
Office of Governor Scott Walker

115 E. State Capitol

Madison, WI 53702

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