SANDS v. WHITNALL SCH. DIST

LOUIS B. BUTLER, JR., J.

¶ 1 This is a review of a published court of appeals opinion reversing and remanding a non-final order of the Milwaukee County Circuit Court, the Honorable Clare L. Fiorenza presiding. The circuit court issued an order directing the Whitnall School District (the District) to provide answers to interrogatories from Barbara Sands (Sands) regarding a discussion about her employment during a closed session of the Whitnall School Board (the Board).

¶ 2. The District appealed, claiming that the circuit court granted Sands' motion to compel based on its erroneous failure to recognize that discussions transpiring during a closed meeting are privileged under the provisions of Wis. Stat. § 19.85(2005-06) authorizing the closed meeting, or, alternatively, under a "deliberative process privilege." The court of appeals agreed, holding that the language of § 19.85 indicates that the legislature intended to protect the substance of closed sessions from public disclosure, and that such an implicit privilege is authorized by Wis. Stat. § 905.01. Sands v. Whitnall School District, 2007 WI App 3, ¶¶ 10, 15, 298 Wis. 2d 534, 728 N.W.2d 15. The court of appeals reversed the circuit court's order and remanded the cause with directions to deny Sands' motion to compel. Id., ¶ 15.

¶ 3. Sands petitioned this court for review. She argues that it was the court of appeals, not the circuit court, which issued an erroneous ruling because there is neither a "deliberative process privilege" in Wisconsin nor any other privilege implicit in Wis. Stat. § 19.85 shielding the contents of closed sessions from discovery.

¶ 4. We agree with Sands and conclude that the court of appeals decision was based on an erroneous interpretation of Wis. Stat. §§ 19.85 and 905.01. Consequently, we reverse the decision of the court of appeals and remand for further proceedings consistent with this opinion.

¶ 5. The pertinent facts and procedural background of this case are not in dispute. In 1998, the Whitnall School District hired Sands to run the District's Gifted and Talented Education Program. After closed session meetings on April 29, 2002, and May 13, 2002, addressing Sands' employment, the Board voted in an open session not to renew Sands' contract. Sands was informed of the decision three days later, on May 16, 2002.

¶ 6. On April 23, 2004, Sands filed a lawsuit stating that because she had served as an "administrator" within the meaning of Wis. Stat. § 118.24(6), she was entitled to, but had been denied, that statute's protections. Specifically, the complaint alleged that because Sands did not receive four-months' notice that her contract would not be renewed, the District had violated her rights under § 118.24(6), and she was therefore entitled to receive a salary and certain benefits, including an early retirement option and post-retirement health insurance, for two years.

¶ 7. In its answer, the District denied that Sands' job duties were solely or principally administrative and that her contract was subject to Wis. Stat. § 118.24. The District also alleged affirmative defenses, including unsatisfactory job performance by Sands, her knowledge that failure to improve her job performance would result in a decision not to renew her contract, the lack of any guaranteed salary or benefits to Sands, Sands' own failure to comply with § 118.24, and the applicability of the doctrine of laches.

¶ 8. During discovery, the District produced documents requested by Sands, but refused to provide complete answers to the following interrogatories seeking content from the two closed sessions:

INTERROGATORY NO. 2: Separately, for each person identified in response to interrogatory 1 [those present at the closed sessions], state the substance of the person's knowledge about the decision not to renew Dr. Sands' contract.

INTERROGATORY NO. 5: Identify each person who spoke during the deliberations that resulted in the school board's decision not to renew Dr. Sands' contract.

INTERROGATORY No. 6: Separately for each person identified in response to question 5, above, state the substance of what he or she said about renewing Dr. Sands' contract.

In response to all three requests, the District declined to answer, claiming that the information was privileged under Wis. Stat. § 19.85 and under a "deliberative process privilege." Sands filed a motion to compel, and the District opposed the motion, repeating its privilege claims.

¶ 9. The circuit court ruled in favor of Sands, concluding that the District was required to provide the information requested in the interrogatories. The court explained that it was granting the motion to compel because privileges in Wisconsin are narrowly construed; because Wisconsin has never recognized a deliberative process privilege; and because, as a litigant, Sands is entitled to discovery, which the court differentiated from open records requests. In support of its conclusion that the discovery process allows Sands' request for information, the court relied on and quoted the language in Burnett v. Alt, 224 Wis. 2d 72, 85, 589 N.W.2d 21 (1999), that "[p]rivileges are the exception, not the rule," and that unless such a privilege applies, parties "are entitled to every person's evidence" (citation omitted). The circuit court in this case concluded:

I guess if the Supreme Court wants to create a privilege in this case, then they can create one. I don't think there's a privilege in this case. I think that [Sands] has a right to this discovery process. And if the Supreme Court wants to find that I'm wrong, that's why we have appellate cases and maybe they'll view me differently. But the cases that I've read and my gut feeling with respect to this whole discovery process, and clearly — you know, parties in litigation are entitled to same person's evidence. And I don't see a privilege and I don't see that's inherent in the statute. I just don't view it that way. And someone else — In all due respect, someone else might view it a different way and I'll be reversed then. And that's my gut call after reading the cases. I think that the [District] has to produce this information in this lawsuit with respect to Miss Sands' employment, of not giving proper notice regarding termination. I don't know what was discussed during that closed session. I guess that's what [Sands'] counsel wants to know, what was discussed. And it doesn't mean it's admissible. It might not be relevant, but they have a right during discovery to search out information that may support their position.

¶ 10. In an order dated April 12, 2005, the court granted Sands' motion and directed the District to answer Interrogatories No. 5 and 6. The District appealed.

¶ 11. The court of appeals decision issued on December 27, 2006, reversed the circuit court decision and remanded the cause with directions to enter an order denying Sands' motion to compel. Sands, 298 Wis. 2d 534, ¶ 15. The court of appeals held that the plain text of Wis. Stat. § 19.85 "clearly indicates that discussions occurring in a properly noticed closed session are not subject to disclosure. The statute contains no exceptions to the non-disclosure principle, none for litigation or any other circumstances." Id., ¶ 10. The court of appeals also cited Wis. Stat. § 905.01 to hold that "a privilege of non-disclosure is implicit within [§ 19.85]." Id. It rejected Sands' reference to § 19.85(1)(b), which specifies that notice of closed sessions is required so the employee can demand that an evidentiary hearing be held in open session, explaining that this is not a subsec. (1)(b) case involving an evidentiary hearing. Id., ¶ 13. The court of appeals concluded that

based on the statutory language of Wis. Stat. § 19.85, the legislature intended for the substance of closed sessions to remain protected from public disclosure. Accordingly, the discussions which occurred at the closed sessions in this matter are not discoverable.

¶ 12. Sands petitioned this court for review of the court of appeals' decision, and on June 12, 2007, we granted review.

¶ 13. We review a circuit court's order compelling discovery under an erroneous exercise of discretion standard. Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶ 19, 251 Wis. 2d 68, 640 N.W.2d 788. Under that standard, we will sustain discretionary acts if we find the circuit court examined the relevant facts, applied a proper standard of law, and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach. Id. However, whether the circuit court applied the proper legal standard is a question of law we review independently of the circuit court but benefiting from its analysis. Id. The burden of proof is on the appellant to show that the circuit court erroneously exercised its discretion in granting a litigant's right to discovery. Shibilski v. St. Joseph's Hosp. of Marshfield, Inc., 83 Wis. 2d 459, 470-71, 266 N.W.2d 264 (1978).

¶ 14. Determining whether the circuit court applied the correct legal standards in this case requires us to interpret various statutes, including Wis. Stat. §§ 905.01 and 19.85. Statutory interpretation is a question of law, which we review de novo. State v. Waushara County Bd. of Adjustment, 2004 WI 56, ¶ 14, 271 Wis. 2d 547, 679 N.W.2d 514.

¶ 15. Statutory interpretation begins with the text of the statute; if the meaning of the statute is plain, this court ordinarily stops the inquiry. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted). "[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. If a statute is ambiguous, i.e., capable of being understood in more than one way by reasonably well-informed persons, the court may examine external sources such as legislative history to determine the statute's meaning. Id., ¶¶ 47-48. However, the court may also consult extrinsic sources "to confirm or verify a plain-meaning interpretation." Id., ¶ 51.

¶ 16. The procedural posture of this case governs the lens through which we view it. Although the District attempts to frame this case as an open meetings case, the order on appeal is a motion to compel in the context of a standard Wis. Stat. § 804.01 discovery request. Consequently, § 804.01 governs this case. Therefore, although we will address the District's claims of an implicit privilege and of a "deliberative process privilege" under the closed meetings statute, we will review those claims through the appropriate lens, bearing in mind that this is ultimately a § 804.01 discovery case.

¶ 17. Wisconsin Stat. § 804.01(2)(a), which sets forth the general scope of allowable discovery, states:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The express language of this statute clearly provides that parties shall have access to relevant information, including information that may be inadmissible at trial, so long as that information is not "privileged." In this case, the mere fact that the information Sands sought was related to the contents of a closed session does not mean that such information is "privileged." To explain why, we begin by addressing the broad nature of a litigant's right to discovery.

¶ 18. The right to discovery is an essential element of our adversary system. In order for our adversary system to effectively ensure the ability of litigants to uncover the truth, and to seek and be accorded justice, it is our responsibility to render decisions that do no harm to the fundamental and important right of litigants to access our courts. In Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d 413, we elaborated upon these principles, explaining the fundamental importance of discovery rights:

In general, the public has a right to every person's evidence at trial. At its core, the adversary system is based upon the proposition that an examination of all of the persons possessing relevant information, which will lead to the discovery of all of the relevant facts, will produce a just result. Nevertheless, this fundamental legal principle is tempered by constitutional, common law, or statutory privileges. Because the adversary system places a premium on the discovery of relevant information, courts are cautious not to overly interfere with this goal.

¶ 19. The parameters of permissible discovery are broad by necessity. As we have explained, "[t]his breadth is essential because the purpose of discovery is identical to the purpose of our trial system — the ascertainment of truth." Crawford ex rel. Goodyear v. Care Concepts, Inc., 2001 WI 45, ¶ 13, 243 Wis. 2d 119, 625 N.W.2d 876. See also United States v. Nixon, 418 U.S. 683, 709-10 (1974); Shibilski, 83 Wis. 2d at 466; Davison v. St. Paul Fire Marine Ins. Co., 75 Wis. 2d 190, 199, 248 N.W.2d 433 (1977). We cannot render meaningful legal decisions without first determining the true facts of each case. "One of the fundamental policies of our law, and one which dominates in the absence of a special policy arising in particular types of situations, is that the judicial system and rules of procedure should provide litigants with full access to all reasonable means of determining the truth." Jacobi v. Podevels, 23 Wis. 2d 152, 156-157, 127 N.W.2d 73 (1964).

¶ 20. 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.

¶ 21. We must, therefore, tread carefully in the face of potential threats to a litigant's pursuit of truth and justice. Such threats to a litigant's access to truth and justice may come in the form of overly broad claims of evidentiary privilege. In a case emphasizing the fundamental importance of protecting access to discovery, the court of appeals has explained that "[e]videntiary privileges . . . interfere with the trial's search for the truth, and must be strictly construed, consistent with the fundamental tenet that the law has the right to every person's evidence." State v. Echols, 152 Wis. 2d 725, 736-37, 449 N.W.2d 320 (Ct. App. 1989).

¶ 22. In respect of these fundamental principles which lie at the core of discovery rights and are the foundation of our adversary system, we have held that "[p]rivileges are the exception, not the rule." Alt, 224 Wis. 2d at 85. The scope of that exception is the subject of this case.

¶ 23. Our inquiry into the scope of discovery privileges begins with a look at the relevant statutory language regarding privileges. First, Wis. Stat. § 804.01(2)(a) provides that parties may obtain relevant discovery regarding any matter, as long as it is "not privileged." Wisconsin Stat. § 905.01, in turn, describes the scope of evidentiary privileges, and states:

Except as provided by or inherent or implicit in statute or in rules adopted by the supreme court or required by the constitution of the United States or Wisconsin, no person has a privilege to:

(1) Refuse to be a witness; or

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

(Emphasis added.)

¶ 24. The remainder of Chapter 905 proceeds to set forth a number of explicit privileges, none of which apply in this case. The District does not claim that any of the explicit statutory privileges contained within ch. 905 apply. Rather, the District's arguments are primarily focused on a different statute, Wis. Stat. § 19.85, which it argues contains an implicit privilege against disclosure of closed meeting contents. Section 19.85 provides in pertinent part:

(1) Any meeting of a governmental body, upon motion duly made and carried, may be convened in closed session under one or more of the exemptions provided in this section. The motion shall be carried by a majority vote in such manner that the vote of each member is ascertained and recorded in the minutes. No motion to convene in closed session may be adopted unless the chief presiding officer announces to those present at the meeting at which such motion is made, the nature of the business to be considered at such closed session, and the specific exemption or exemptions under this subsection by which such closed session is claimed to be authorized. Such announcement shall become part of the record of the meeting. No business may be taken up at any closed session except that which relates to matters contained in the chief presiding officer's announcement of the closed session. . . .

The District's argument that the above statutory language creates an evidentiary privilege relies in part on a premise that reading such a privilege into § 19.85 is authorized by the above "inherent or implicit" language of Wis. Stat. § 905.01.

¶ 25. Sands, in turn, argues that the open meetings law does not create such an implicit or inherent privilege. Sands seeks to reinstate the judgment of the circuit court in this case, which rejected the District's claim to an implicit privilege under Wis. Stat. § 19.85, ruling instead that parties to litigation are generally entitled to evidence and that no inherent privilege precludes such discovery in this case.

¶ 26. Before turning to Wis. Stat. § 19.85, we look at the statute authorizing privileges, Wis. Stat. § 905.01. Our task is first to determine the meaning of the "inherent or implicit" privilege language in § 905.01.

¶ 27. To the extent that there may be any ambiguity created by the language of Wis. Stat. § 905.01's "inherent or implicit" privilege provision, we find guidance in the Judicial Council Committee's note to the statute. The Judicial Council note provides in pertinent part:

The phrase "or inherent or implicit in statute" is designed to insure that the "work product" immunity rule and the interpretations of s. 19.21 [19.35] are unaffected. The Wisconsin "work product" immunity rule like the federal rule originates in the discovery statutes. However, the federal rule has now been incorporated expressly in revised Rule 26(b)(3) of the Federal Rules of Civil Procedure. Wisconsin does not appear to be inconsistent with this manner of restricting privileges. Common law privileges, not originating in the constitution, could not be enlarged on a case by case basis. [Citations omitted.]

This section recognizes that there are other statutory privileges that are not included in this chapter. However, they are provided for in other statutory provisions. . . .

The right of a member of the public to inspect public documents as specified in s. 19.21 [19.35] (formerly s. 18.01) remains subject to the procedure outlined in State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965), modified and rehearing denied 28 Wis. 2d 672, 139 N.W.2d 241 (1965) and Beckon v. Emery, 36 Wis. 2d 510, 153 N.W.2d 501 (1967).

Judicial Council Committee's Note, 1974, Wis. Stat. § 905.01, 59 Wis. 2d R101-102 (emphasis added). This Judicial Council note reveals that the "inherent or implicit" language in the Rule is quite narrow in scope and was included by this court to preserve a particular work product privilege already recognized at the time this language was added to the statute, while leaving other privileges to be provided for more expressly in other statutory provisions (aside from privileges against Wis. Stat. § 19.35 open records requests that are still governed by a common law balancing test).

¶ 28. This Judicial Council note's discussion of the meaning of Wis. Stat. § 905.01's "inherent or implicit" language was explained by Justice Bradley's dissenting opinion in Alt:

According to the Judicial Council's notes on Wis. Stat. § 905.01, the phrase "inherent or implicit" was inserted, not to give a court some device with which to "interpret" additional privileges. Rather, the notes strongly suggest that the phrase was inserted solely to protect the "work-product privilege" — a privilege the court created prior to 1973 in State ex rel. Dudek v. Circuit Court, 34 Wis. 2d 559, 150 N.W.2d 387 (1967). . . .

This latter interpretation is consistent with the tenor of the rule: new privileges are not to be created except by legislation or Supreme Court rule. Davison v. St. Paul Fire Marine Ins. Co., 75 Wis. 2d 190, 205-06, 248 N.W.2d 433 (1977). Wisconsin Stat. § 905.01 is not a license for courts to create, modify, or expand privileges; that task must be accomplished by legislative or rule-making action.

¶ 29. Davison was a tort case against a hospital which reached our court on appeal after the circuit court refused to recognize a common law or statutory testimonial privilege protecting the proceedings and reports of certain hospital committees from disclosure through discovery. Davison, 75 Wis. 2d at 192-94. This court rejected the hospital's claims to a common law privilege as unsupported by any legal authority. Id. at 201-02. As to the claimed statutory privilege, the hospital in Davison argued that language in the administrative code indicates a clear legislative intent to keep the committee's reports and proceedings confidential, thereby affording a privilege against discovery under Wis. Stat. § 905.02's language recognizing privileges "if provided by law." Id. at 196. This court rejected that claim, explaining that § 905.02 codifies only those privileges that are specifically and unequivocally granted, that this court has consistently interpreted such privileges strictly and narrowly, and that there is no statutory right of testimonial privilege protecting the documents in question from discovery. Id. at 195-201. Finally, this court rejected the hospital's suggestion that this court is authorized to create a privilege judicially on a case-by-case basis, explaining that if the sought-after privilege arises from common law, it must be adopted by supreme court rule or by statute. Id. at 205-06.

¶ 30. Although in Davison the rule that statutory privileges must be specifically and unequivocally granted was discussed in terms of Wis. Stat. § 905.02, the Judicial Council note to Wis. Stat. § 905.01 clarifies that this principle is embraced as well in § 905.01, which added the phrase "inherent or implicit" only for the purpose of "insur[ing] that the `work product' immunity rule and the interpretations of [Wis. Stat. § 19.35] are unaffected," while other statutory privileges may still be specifically provided for in other statutory provisions. Judicial Council Committee's Note, 1974, Wis. Stat. § 905.01, 59 Wis. 2d R101-102.

¶ 31. In addition, the underlying emphasis in Davison on the narrow and limited nature of privileges against discovery is consistent with the approach taken across the country. In Davison, this court quoted the following passage from the U.S. Supreme Court decision in Nixon: "`. . . these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.'" Davison, 75 Wis. 2d at 199 (quoting Nixon, 418 U.S. at 709-10); see also Shibilski, 83 Wis. 2d at 466.

¶ 32. Even where a statute contains confidentiality requirements, an evidentiary privilege is not necessarily created as a result, because "`confidential' and `legal privilege' are very different" concepts. Custodian of Records for LTSB v. State, 2004 WI 65, ¶¶ 14-15, 272 Wis. 2d 208, 680 N.W.2d 792. Legal privilege is a broader concept than confidentiality. While confidential data is "meant to be kept secret," legal privilege includes "the legal right not to provide certain data when faced with a valid subpoena." Id., ¶ 15. Similarly, even though the Uniform Trade Secrets Act, Wis. Stat. § 804.01(3)(a)7., creates confidentiality protections for trade secrets, it also provides that trade secrets, "or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way[,]" may nonetheless be subject to discovery in a lawsuit, with protective orders available to protect confidentiality.

¶ 33. As such, as a general rule, and even in the case of confidential information, the scope of allowable discovery is necessarily broad, being central to the core purpose and principles of our adversary system. Efforts to curtail a litigant's quest for truth should not be liberally rewarded, but must be scrutinized with caution and an eye toward preserving the principles of our adversary system.

¶ 34. Having explained the broad access to information accorded by our discovery statutes and the contrasting narrow nature of the privileges that may be claimed in the face of discovery requests, we now address the particular statutes that are more directly implicated by the District's privilege argument: the open meetings law and the closed session exemptions thereto.

¶ 35. Wisconsin's open meeting laws, like our discovery statutes, reflect our State's policy of a strong presumption in favor of openness and access. Wisconsin Stat. § 19.81, the official "Declaration of policy" of the open meetings subchapter under which Wis. Stat. § 19.85 falls, explicitly describes the intent of the legislature and policy underlying the open meetings law as follows:

(1) In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.

The subchapter's declaration of policy proceeds to further explain that the policy of the open meetings subchapter is also "[t]o implement and ensure the public policy herein expressed, all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law." Wis. Stat. § 19.81(2).

¶ 36. This declaration of policy underscores the general tenor of the open meetings statute: a recognition that meetings of governmental bodies must be more open to the public than meetings of nongovernmental bodies. Those nongovernmental bodies' meetings that are not open to the public are still generally subject to litigation discovery requests. It would be incongruous with the clear policy articulated in the open meetings statute for the legislature to include in the open meetings statute, which generally holds governmental bodies to a higher degree of scrutiny and openness than nongovernmental bodies, a privilege against litigation discovery to which only governmental bodies, not nongovernmental bodies, are entitled.

¶ 37. Furthermore, the closed session exemptions to the open meetings law are limited in scope, confined to those specific contexts listed in Wis. Stat. § 19.85(1)(a)-(j). Even in those contexts, the statute only permits, but does not require, meetings to convene in closed session, i.e., with members of the public not allowed to attend. See Wis. Stat. § 19.85(1) (certain governmental meetings " may be convened in closed session under one or more of the exemptions provided in this section" and a "closed session may be held for any of the following purposes . . .") (emphasis added).

¶ 38. The particular closed session provision at issue in this case is Wis. Stat. § 19.85(1)(c), which allows closed sessions for the purpose of" [c]onsidering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility." We disagree with the court of appeals' conclusion that "a privilege of non-disclosure is implicit within this statute." Sands, 298 Wis. 2d 534, ¶ 10.

¶ 39. Courts in other states with similar statutes that have addressed this issue have rejected such an approach that equates the creation of closed session exemptions from open meetings laws with the creation of closed meeting discovery privileges. See, e.g., County Comm'rs for St. Mary's County v. Lacer, 903 A.2d 378, 387 (Md. 2006) (upholding circuit court order permitting discovery related to the statements and actions of a county board during a closed session meeting); State ex rel. Upper Republican Natural Res. Dist. v. Dist. Judges of the Dist. Ct. for Chase County, 728 N.W.2d 275, 279-81 (Neb. 2007) (concluding that there is no privilege for communications by virtue of the communications having been made during a closed session); Springfield Local Sch. Dist. Bd. of Ed. v. Ohio Ass'n of Pub. Sch. Employees, 667 N.E.2d 458, 467 (Ohio Ct. App. 1995) ("there is no absolute privilege to be accorded discussions held in executive session [although] a trial court, in its discretion, may limit discovery"). See also Dillon v. City of Davenport, 366 N.W.2d 918, 921 (Iowa 1985):

While section 28A.5 provides specific direction concerning the preservation of the occurrences in a closed session and details the extent to which the minutes or a recording of the meeting may be disclosed, it does not specify that the discussions at the closed meeting acquire the status of confidential communications which are privileged from any use other than that specified. Subsection 28A.5(4) does provide that such matters "shall be sealed and shall not be public records open to public inspection," except in an enforcement action after examination by the court in camera; this is not an enforcement action. On the other hand, our discovery rule provides that the parties "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Iowa R. Civ. P. 122(a).

¶ 40. Even Illinois, a state that grants qualified immunity to some types of closed session communications, does so in a manner that preserves any discovery rights to which a litigant may be entitled. In a decision concluding that labor-negotiating strategy sessions were entitled to a type of privilege against discovery requests, the Illinois Supreme Court was careful to limit that privilege to a qualified privilege which still allows litigants access to the requested information through an in camera inspection, after the party seeking disclosure of the privileged information shows a "`compelling necessity' for the specific information requested." Illinois Educ. Labor Relations Bd. v. Homer Cmty. Consol. Dist., 547 N.E.2d 182, 187-88 (Ill. 1989). In a later decision, the court similarly recognized that "it is unjust to afford the government the benefit of withholding relevant evidence while requiring its opponent to adhere to the established rules of open discovery." People ex rel. Birkett v. City of Chicago, 705 N.E.2d 48, 52 (Ill. 1998).

¶ 41. We find particularly compelling the examination of this issue by the Nebraska Supreme Court, which held that its open meetings act did not, by including a closed session exception, thereby create a closed session discovery privilege in Upper Republican NRD. In that case, a nonprofit organization called WaterClaim, along with several concerned residents of a natural resources district, sued the Upper Republican Natural Resources District (NRD) and its board of directors for a violation of Nebraska's Open Meetings Act. Upper Republican NRD, 728 N.W.2d at 277-78. When the plaintiffs attempted to depose some of the defendants, the defendants filed a motion in limine, arguing in part that discussions held in closed session are exempt from discovery because they are confidential. Id. at 278. In response, the plaintiffs filed a motion to compel, which the presiding judge granted, explaining that

[i]f the Court were to rule in the [defendants'] favor on this matter, it would prevent any lawsuit, at any time, claiming a violation of the Open Meetings [Act] to move forward because all of the evidence involved in the violation of the Open Meetings [Act] was at the meeting held in private.

¶ 42. In a mandamus action, the Nebraska Supreme Court affirmed, applying a thorough analysis of the relationship between closed session exemptions to open meetings laws and privileges against discovery, which the court explained are necessarily distinct concepts. Id. at 279-81. The court explained that its state's public meetings laws are liberally construed to fulfill the objective of openness in favor of the public, while closed session provisions are narrowly and strictly construed. Id. at 279. The court contrasted the express language creating discovery privileges in other contexts with the lack of any comparable language in its state's open meetings act indicating that the Nebraska legislature "intended to create an absolute privilege for all communications occurring while a public body is in a closed session." Id. at 279-80.

¶ 43. After concluding there was no explicit privilege in the text of the statute or evidence of legislative intent to create such a privilege, the court explored the strong policy reasons for not denying discovery access to closed session contents:

Our conclusion is also based on the fact that if these communications were privileged solely because they occurred during a closed session, a private litigant would be left without the ability to challenge the validity of the public body's actions during a closed session. To determine whether a public body, in a closed session, has acted outside of its authority, a private litigant must have access to those communications by means of a legitimate discovery request. To conclude otherwise would, in essence, immunize a public body from any challenge relating to the propriety of its closed session.

¶ 44. Like the Nebraska Supreme Court, we find no language in our own open meetings laws indicating that our legislature intended to create a broad discovery privilege for communications occurring in closed sessions of governmental bodies, in contrast with the numerous other privileges that explicitly are provided for in our discovery statutes.

¶ 45. To the contrary, the language of Wis. Stat. § 19.85 does not describe the contents of closed meetings as either secret or exempt from discovery. In addition, the text of § 19.85 allowing closed meetings in some circumstances is permissive, not mandatory. We will not infer a mandatory discovery privilege for closed session contents when the closed session statute itself speaks in permissive terms, not requiring any meeting to be closed in the first place.

¶ 46. Most importantly, as we have explained, the rights of private litigants to engage in legitimate discovery requests are critical to the functioning of our truth and transparency-focused adversary system. While certain government bodies may be entitled to have some meetings closed to the general public, we do not view such permissive limitations upon the physical presence of the general public at meetings to justify automatically mandating the denial of discovery to litigants whose rights such meetings may directly affect.

¶ 47. Consistent with decisions in other states that have addressed this issue, we therefore conclude that in allowing governmental bodies to conduct closed sessions in limited circumstances, Wis. Stat. § 19.85 does not thereby create a blanket privilege shielding closed session contents from discovery.

¶ 48. While our holding here is consistent with the conclusions reached by other states, it is also consistent with our own past decisions such as LTSB, in which this court explained that "not all confidential data is that over which the custodian or owner may assert a privilege." LTSB, 272 Wis. 2d 208, ¶ 15 (citations omitted). Thus, just because a meeting may be kept closed from the public, even if some of the meeting contents are thereby "confidential" in some sense of the word, it does not necessarily follow that the District has a legal privilege to refuse compliance with discovery requests.

¶ 49. The District concedes that not all statutes allowing confidentiality necessarily create a privilege, but attempts to distinguish LTSB by asserting that the closed meeting provisions of Wis. Stat. § 19.85 "extend far beyond" the custodial requirement in LTSB that data maintained by the legislative technology services bureau be kept confidential.

¶ 50. The District argues that the more applicable cases are Alt, 224 Wis. 2d at 85-86, in which this court found a privilege in Wis. Stat. § 907.06(1) precluding expert witnesses from being appointed against their will; cases identifying qualified privileges for journalists under Article I, Section 3 of the Wisconsin Constitution; and cases that address the importance of protecting candor in the decision-making process. The District concludes that in the present case, an implicit privilege is apparent due to the purpose of Wis. Stat. § 19.85, which the District describes, without any legislative history or other citations, in the following terms:

The legislature weighed the competing interests in enacting the open meetings law, and balanced those interests when it created statutory exemptions. In that process, it determined that, in the circumstances defined in § 19.85(1)(a) through (j), society's interest in not having those discussions and deliberations publicly disclosed outweighs society's interest in "open government."

¶ 51. The District's arguments fail for a number of reasons. First, the District has it backwards when it cites DeHart v. Wisconsin Mutual Insurance Co., 2007 WI 91, ¶ 31, 302 Wis. 2d 564, 734 N.W.2d 394, for the rule against judicial creation of exceptions to clear and unambiguous statutory provisions. The District attempts to apply DeHart to argue that the circuit court in this case improperly created a discovery exception to the closed meeting provisions of Wis. Stat. § 19.85. However, Dehart actually serves to defeat the District's arguments because it reaffirms the impropriety of judicially creating an exception to the clear and unambiguous statutory language of Wis. Stat. § 804.01, which is in essence what the District is asking us to do.

¶ 52. Second, the District's argument that Wis. Stat. § 19.85 "extends far beyond" the custodial requirement in LTSB in its protection of information is not persuasive. LTSB, a case involving a criminal investigation of certain legislators and legislative employees, involved a subpoena duces tecum ordering the production of electronically stored communications in the possession of the Legislative Technology Services Bureau (LTSB). LTSB, 272 Wis. 2d 208, ¶¶ 1-4. The confidentiality protections asserted in LTSB were expressly set forth in Wis. Stat. § 13.96, which provides that LTSB "shall at all times observe the confidential nature of the data and information originated, maintained or processed by electronic equipment supported by it." Id., ¶ 13 (quoting Wis. Stat. § 13.96).

¶ 53. In contrast, there is no such explicit confidentiality mandate in the text of Wis. Stat. § 19.85. Indeed, unlike the statute at issue in LTSB, there is no pertinent mandatory language at all in § 19.85. Rather, § 19.85(1) uses permissive language, allowing that certain governmental meetings " may be convened" and " may be held" in limited circumstances (emphasis added). The District has failed to explain how material that is not explicitly designated "confidential" is more entitled to a privilege against disclosure than material that is so designated. Consequently, the argument that § 19.85 "extends far beyond" Wis. Stat. § 13.96 in its protection of certain information is not a viable argument.

¶ 54. Third, the District's description of Alt is flawed. Alt actually illustrates why the closed sessions statute in this case does not create such a privilege. In Alt, this court found a privilege in the text of Wis. Stat. § 907.06(1), the language of which this court held was "clear and unambiguous" in expressly providing that expert witnesses may not be appointed by the court against their will. Alt, 224 Wis. 2d at 86. This court held in Alt that "this express grant implies a privilege to refuse to testify if the expert is called by a litigant. If a court cannot compel an expert to testify, it logically follows that a litigant should not be able to so compel an expert." Id. (emphasis added).

¶ 55. Although this court described the privilege in Alt as "implicit" as it pertained to an expert's right to refuse a judge's request for testimony, this court emphasized that its conclusion that such implicit privilege existed was based on the explicit, unambiguous, and express statement in Wis. Stat. § 907.06 establishing the right of experts to refuse litigants' requests for them to testify. Id. at 85-86. As such, Alt's significance for the present case is that, unlike in Alt, the statute in the present case does not contain any similar language which explicitly, unambiguously, and expressly allows the District to refuse to turn over meeting contents to any person, let alone a litigant or judge. Quite the contrary; the policy underlying the interplay of Wis. Stat. §§ 19.81, 19.85, 804.01(2)(a) and 905.01 is one of openness. Consequently, the District does not provide grounds for our deviating from the general rule articulated in the opening of our analysis in Alt that "[p]rivileges are the exception, not the rule." Id. at 85.

¶ 56. Fourth, the District's argument that an implied privilege for contents of closed meetings is like the constitutional qualified privilege for journalists is a flawed analogy. The case upon which the District relies to make this argument, State v. Knops, 49 Wis. 2d 647, 183 N.W.2d 93 (1971), was a case about constitutional privilege, and was decided before Wis. Stat. § 905.01 was enacted, restricting the creation of new evidentiary privileges.

¶ 57. Finally, the District's description of the policy underlying Wis. Stat. § 19.85 is unpersuasive. The District highlights the court of appeals' citation of National Labor Relations Board v. Sears, Roebuck Co., 421 U.S. 132, 150-51 (1975), for the proposition that one purpose of § 19.85 is to allow candid discussion by closed meeting participants, free from worries that the discussion will be disclosed, and that a privilege is necessary to accomplish that purpose. However, NLRB is inapposite. The case does not address either § 19.85 or discovery statutes at all, but rather addresses an explicit exemption from disclosure for certain intra-agency memorandums under section 5 U.S.C. § 552(b)(5)(1970) of the federal Freedom of Information Act (FOIA), an exemption which the Supreme Court held did not even apply in that case. NLRB, 421 U.S. at 155. Consequently, there may be an executive privilege from FOIA disclosure for certain intra-agency memorandums under the express language of 5 U.S.C. § 552(b)(5) of the federal Freedom of Information Act, but the present case involves a discovery request for information pertaining to a lawsuit, not a FOIA request made to a federal agency.

¶ 58. The District's related argument, that the legislature's intent to create a discovery privilege in enacting Wis. Stat. § 19.85 can be inferred from the fact that, according to the District, the legislature balanced competing public interests and found that society's interest in making closed session discussions private outweighs society's interest in access to the content of such discussions, also fails. This argument is unsupported by any citation to legislative history, statutory or case law evincing such a decision by the legislature.

¶ 59. For all of these reasons, we conclude that allowing limited exceptions to the open meetings statute does not equate to creating an implicit evidentiary privilege against discovery requests. Wisconsin Stat. § 19.85 provides only that some meetings may be closed, not that their contents are privileged against discovery requests under Wis. Stat. § 804.01. In other words, "closed meeting" is not synonymous with "a meeting that, by definition, entails a privilege exempting its contents from discovery." Considering the general presumptions of openness and access underlying both our discovery and open meetings statutes, there is no compelling justification for denying a litigant's rights to discovery regarding the substance of closed session discussions pertaining to that litigant. Therefore, we conclude that § 19.85 does not create a privilege shielding contents of closed meetings from discovery requests.

¶ 60. The District alternatively refers to the privilege it seeks as a "deliberative process privilege [which] prohibits the compelled disclosure of the Board's discussions." However, no such "deliberative process privilege" has ever been recognized by the Wisconsin courts, and we decline the District's invitation to create a new privilege judicially.

¶ 61. The only justification the District gives for adopting a new "deliberative process privilege" is a string citation of federal cases that have no bearing on the present case, and that do not support the argument that a "deliberative process privilege" is implicit in Wis. Stat. §§ 19.85 and 19.31.

¶ 62. The first case cited by the District, Tennessean Newspapers, Inc. v. Federal Housing Administration, 464 F.2d 657 (6th Cir. 1972), merely discussed in passing an explicit privilege against FOIA requests established by the plain text of the federal Freedom of Information Act, which exempts from FOIA requirements "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5)(1970) (emphasis added). See Tennessean Newspapers, Inc., 464 F.2d at 659. Not only does this case address an explicit exemption from FOIA, as opposed to an implicit exemption from discovery requests, but this FOIA exemption recognizes the importance of broad access to information in litigation, enabling access to such information even in the face of a FOIA exemption.

¶ 63. All the other cases the District cites in this section save one pertain to interpretations of the FOIA exemption as well, and their discussions of FOIA are not authoritative in our deliberations of a different breed of claimed implicit privileges under our state law.

¶ 64. NLRB, 421 U.S. at 150, for example, explains that "Congress had the Government's executive privilege specifically in mind in adopting Exemption 5." Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 9 (2001), also describes limitations on the FOIA exemption. In that case, the Court explained that the point of the FOIA exemption:

is not to protect Government secrecy pure and simple . . . and the first condition of Exemption 5 is no less important than the second; the communication must be "inter-agency or intra-agency," 5 U.S.C. § 552(b)(5). . . . "[A]gency" means "each authority of the Government of the United States," § 551(1), and "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government . . . or any independent regulatory agency, § 552(f)."

¶ 65. The final FOIA case cited by the District as supporting an implicit privilege under our state laws is Enviro Tech International, Inc. v. United States Environmental Protection Agency, 371 F.3d 370 (7th Cir. 2004). The District argues that this case stands for the proposition that "[t]o qualify for protection under the deliberative process privilege, the documents or other evidence in issue must be both `predecisional and deliberative' in nature." To the extent that this description implies that the issues in Enviro Tech overlap with those implicated in the present case, it is an inaccurate description of Enviro Tech. Enviro Tech is a FOIA case and clearly describes the deliberative process privilege at issue in that case as a privilege contained specifically in the FOIA exemption, explaining that "materials are routinely shielded from disclosure by the deliberative process privilege under FOIA Exemption 5." Id. at 373 (emphasis added) (citation omitted).

¶ 66. In the only deliberative process privilege case cited by the District that was not a FOIA case, Lang v. Kohl's Food Stores, Inc., 185 F.R.D. 542, 550-51 (W.D. Wis. 1998), a single magistrate judge did recognize a broader "deliberative process privilege" beyond the context of FOIA requests. In that case, however, the magistrate explained that the privilege can be overcome by a showing of individual need for information:

I also find that the [Equal Employment Opportunity Commission's] claim of deliberative process privilege is well-taken. The deliberative process privilege protects communications that are part of the decision-making process of a governmental agency. Because frank discussion of legal and policy matters is essential to the decisionmaking process of government agencies, communications made prior to and as part of an agency determination are protected from disclosure. The privilege does not apply to communications made subsequent to the agency's decision. The privilege may be overcome by a sufficient showing of particularized need outweighing the reasons for confidentiality. The privilege should be applied as narrowly as consistent with efficient government operation.

¶ 67. Most importantly, none of the cases the District cites address either Wis. Stat. § 19.85 or § 804.01, or hold that such a closed meeting privilege against discovery requests exists under Wisconsin law. In fact, Wisconsin does not recognize a deliberative process privilege. Wisconsin Stat. § 905.01 precludes the extension of common law privileges by the court on a case-by-case basis, but rather requires common law privileges not originating in the constitution to be adopted by statute or court rule. See Davison, 75 Wis. 2d at 205-06.

¶ 68. Even if it were within our general authority to create new privileges, the deliberative process privilege recognized by federal courts as explicitly contained in the Freedom of Information Act's fifth exemption does not lend itself to recognition as an implicit privilege applicable to discovery requests under Wisconsin law. This is because our state laws reflect a strong policy of transparency and access, particularly in the context of discovery requests where such a broad privilege would be detrimental to the search for truth central to our adversary process.

¶ 69. In addition to generally flying in the face of longstanding principles of open access, there are potential dangers inherent in the District's requested approach to privileging closed meeting contents against discovery requests. This approach would dramatically affect civil litigation and discovery in many areas where government bodies are litigants. One specific context where such a privilege could most detrimentally impair the judicial process is that of employment discrimination litigation, in which cases government employees who are denied access to their employers' closed discussions about their negative treatment would no longer have access to the discussions about their termination. In such contexts, employees who are discriminated against would not be able to avail themselves of standard discovery to disprove as pretext the employers' proffered reasons for their treatment, which is necessary to prove many federal and state discrimination claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973); State v. Lamon, 2003 WI 78, ¶ 32, 262 Wis. 2d 747, 664 N.W.2d 607; State v. Walker, 154 Wis. 2d 158, 176 n. 11, 453 N.W.2d 127 (1990).

¶ 70. The District has failed to explain the parameters of the new privilege it seeks, leaving unclear, for example, who could invoke it in which circumstances. Nothing would prevent legislative and administrative bodies from going into closed session to escape judicial review any time they fear litigation, in effect granting themselves immunity at whim on a regular basis.

¶ 71. Although we conclude that the closed session exemption to the open meetings laws does not create an evidentiary privilege which exempts the District from discovery compliance in this case, our decision should not be viewed as undermining the ability of government bodies to conduct certain meetings in closed session where authorized statutorily. While discovery rights are broad and paramount to our justice system, they are not without limit. Wisconsin Stat. § 804.01(2)(a), setting forth the scope of allowable discovery, provides that subjects of discovery requests may object to requests that are not relevant to the subject matter involved in the pending action. Section 804.01(3) provides additional protections in the form of protective orders in response to annoying, embarrassing, oppressive, unduly burdensome or unduly expensive discovery requests, as follows:

(3) Protective orders, (a) Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including but not limited to one or more of the following:

1. That the discovery not be had;

2. That the discovery may be had only on specified terms and conditions, including a designation of the time or place;

3. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

4. That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

5. That discovery be conducted with no one present except persons designated by the court;

6. That a deposition after being sealed be opened only by order of the court;

7. That a trade secret, as defined in s. 134.90(1)(c), or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

8. That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

(b) If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. Section 804.12(1)(c) applies to the award of expenses incurred in relation to the motion.

(c) Motions under this subsection may be heard as prescribed in s. 807.13.

As such, just because closed meeting contents are not categorically exempt from discovery compliance, it is not the case that every such discovery request should or will be granted.

¶ 72. In addition, there may be situations in which a discovery request implicates sensitive information to which the general public should not be given access. Although we do not know whether this is such a case, we recognize the potential for such cases involving sensitive government information that would be harmful to release to the general public. In such cases, the public is not necessarily entitled to as much information about government matters as a private individual seeking discovery about an issue directly affecting him or her. However, we also note that protections against such dangers are built into our discovery laws.

¶ 73. The U.S. Supreme Court has described cases in which litigants obtain information potentially damaging to reputation and privacy if publicly released, for example, in the following terms:

[t]he government clearly has a substantial interest in preventing this sort of abuse of its processes. Cf. Herbert v. Lando, 441 U.S. 153, 176-177 (1979); Gumbel v. Pitkin, 124 U.S. 131, 145-146 (1888). As stated by Judge Friendly in International Products Corp. v. Koons, 325 F.2d 403, 407-408 (2d Cir. 1963), "[w]hether or not the Rule itself authorizes [a particular protective order] . . . we have no question as to the court's jurisdiction to do this under the inherent `equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices'" (citing Gumbel v. Pitkin, supra). The prevention of the abuse that can attend the coerced production of information under a State's discovery rule is sufficient justification for the authorization of protective orders.

¶ 74. In addition to issuing protective orders, courts may consider motions to seal the record, or may conduct in camera proceedings to ensure that the information requested is necessary to the litigant and does not exceed the scope of allowable discovery. See State ex rel. Ampco Metal, Inc. v. O'Neill, 273 Wis. 530, 78 N.W.2d 921 (1956).

¶ 75. Finally, we again find guidance in Upper Republican NRD. After concluding that Nebraska's closed meeting statute, which is similar to Wisconsin's, does not create a discovery privilege, the court in Upper Republican NRD added:

We recognize that under certain circumstances, allowing a public body to enter into a closed session, away from the public view, serves to protect the public's interest. However, we do not conclude that granting a litigant access to communications of a closed session, by way of a limited, legitimate discovery request, will harm the public interest. In dealing with a discovery request relating to information from a closed session, a trial court may increase its supervision of the discovery process to ensure that sensitive or confidential information is protected through the creation of an appropriately tailored protective order.

Furthermore, our determination that there is no absolute discovery privilege for communications that occur during closed sessions does not necessarily mean that all communications during closed sessions are discoverable. All other recognized evidentiary privileges are still applicable. Thus, although there is no absolute privilege for closed session communications, to the extent the communications implicate other evidentiary privileges, such as the attorney-client privilege, the communications are protected.

¶ 76. The dissent decries our decision today, conceding that "governmental bodies may continue to meet lawfully behind closed doors," but describing the effect of our decision as being that "what is said there no longer will be privileged to stay there." Dissent, ¶ 80. What the dissent fails to recognize is that there is no closed meeting privilege against discovery compliance.

¶ 77. Neither the parties nor the dissent in this case can point to any statutes or case law establishing a closed meeting privilege against statutory discovery requests. It is therefore quite disingenuous for the dissent to accuse the majority of sweeping too broadly and violating the separation of powers doctrine. Rather, it is the dissent that would have this court engage in judicial activism by creating a new privilege never before recognized by courts in this state and unauthorized by the legislature. Our decision today merely preserves the status quo, in contrast with the dissent's proposal that we establish a new privilege not requested by the parties that would create unprecedented government exemptions from valid litigation discovery requests. The dissent admonishes this court with the reminder that this court must "remember the limitations on its rule-making powers," dissent, ¶ 133, but such limitations are precisely the basis of our decision today. This reminder is one that the dissent itself should heed, rather than engaging in Orwellian "doublethink."

¶ 78. We conclude that the court of appeals decision reversing the circuit court's order granting Sands' motion to compel was based on an erroneous interpretation of Wis. Stat. § 19.85 as containing a privilege shielding the content of closed sessions from discovery requests. Consequently, we reverse the decision of the court of appeals, and remand for further proceedings consistent with this opinion.

¶ 79. By the Court. — The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.