In Racine County, a court dispute over access to public records is fought in secrecy

A Racine County judge said he's only sealed one case in his career. The case he chose to hide from taxpayers and Racine city residents? A petition for access to public records.

The unusual case, now on appeal but also absent from the Court of Appeals web-based index, has only come to light because a maverick Racine Common Council member got tired of what she calls growing secrecy and concentrated power in her local government.

"To me, it’s a huge issue," said Sandy Weidner. "I’m willing to defy the judge's order that it’s sealed."

Advocates for open government are astounded and have never heard of a public records suit being sealed, or any kind of case without some record of who the parties are and why it was under seal.

"Everything I know about this case seems atrocious," said Bill Lueders, president of the Wisconsin Freedom of Information Council.

"These communications should never have been withheld. The trial court judge should never have allowed this matter to be adjudicated in secret. His decision should not have been sealed. The appellate court should not have allowed this secrecy to extend to the appeal."

"These are low-level communications from local residents about local issues, not the  Pentagon Papers," Lueders said.

Patrick Kabat, a First Amendment lawyer in Cleveland who leads a First Amendment clinic at the Cleveland-Marshall College of Law, said it's unheard of for a judge to seal an entire case without some public record of why.

"This is not a public records issue, it’s a courts access issue," he said, "and state open meetings law doesn’t control that, it can’t be wished away."  

Kabat said his clinic's focus is "reminding courts there are two parties in front of them, but the forgotten third party is the public. And its right is enforceable."

City attorney's closed meeting

Weidner has represented Racine's 6th District for nearly 20 years. Last year, she was running for mayor and being critical of the status quo, when, in August, the city attorney, Scott Letteney, requested all 15 council members to attend a meeting of the Executive Committee, normally composed of the city attorney, mayor, heads of three standing committees and one other alderman.

At the closed session, Weidner says, Letteney gave a PowerPoint presentation of about 30 slides, most of which were of emails she had sent to people outside city government from her city email account. Some were of emails two other aldermen sent.

Letteney implied that the emails contained confidential information and was seeking the committee's vote to seek an advisory opinion from the city's Ethics Board on whether the aldermen's actions violated the city's ethics ordinance.

"He wanted to publicly humiliate me. Said he’s tried everything in his power to 'monitor my behavior,' " she said. The problem, she said, is that nothing she sent to constituents, in her experience, was confidential.

"To him, anything that comes into or out of the city attorney's office is covered by the attorney-client privilege," she said, a far more expansive interpretation than the law allows.

After the committee agreed to refer the matter to the Ethics Board, Weidner asked for copies of the presentation. Letteney denied providing them because the Executive Committee had met in closed session.

Then she got a lawyer to ask Letteney and the Ethics Board for the slides. When those requests were also denied or ignored, Weidner sued in December under Wisconsin's public records law. Three days later, Letteney provided 16 emails — with the names of senders redacted — to all the aldermen, as part of the package sent to the Ethics Board.

Judge: An unusual case

But on the day of the first hearing in the case, Racine County Circuit Judge Eugene Gasiorkiewicz, after meeting with lawyers in his chambers, told others there for the hearing that they had to leave because he was sealing the case.

The judge said recently he sealed the case "because of the nature of the action. It's one that shouldn't be open. I made a public policy determination."

But wasn't it an open records case? "I'm sorry, I can't tell you. It's sealed," Gasiorkiewicz said.

He called it an unusual case, the first he's sealed in nine years on the bench.

A call to Letteney, the city attorney, was returned by Michael Cohen, a Milwaukee lawyer retained by the city as outside counsel in the case, which has cost the city thousands of dollars in legal fees.

Cohen said the case was sealed for three reasons: it related to privileged attorney-client communications; the request for advisory opinions from the Ethics Board is supposed to be anonymous; and the underlying matters related to closed sessions of the Executive Committee.

As Weidner sees it, the city attorney just didn't like how she does her job, including who she shared information with, and tried to muzzle her — and by extension any other aldermen or staff.

'What an alderman is supposed to do'

"Most of the other aldermen just go with the flow," she said. "I’m not bucking the system, I’m just doing research to speak out and do what an alderman is supposed to do."

Neither Cohen nor the judge would say if there was a discussion of a more limited way to protect what might be ruled confidential, without sealing the entire case. Courts routinely require public notice from parties who want to file certain documents under seal, with some general characterization of what they are and why they deserved to be hidden.

Indeed, even Gasiorkiewicz's decision and order don't seem to reveal anything specific. It refers to a different 48-page document that lays out 16 emails and only makes vague references to their contents as he decides whether each is privileged or not.

For example, "Content contains reflects (sic) thoughts and processes regarding various ongoing legal matters involving the City of Racine," which he deemed privileged.

Others included, "thought process regarding retention of outside counsel, legal opinions regarding closed sessions," and a city ordinance, along with a Milwaukee ordinance that Racine was considering adopting, which Gasiorkiewicz deemed privileged as the city attorney's work product.

The items Gasiorkiewicz determined not to be privileged certainly raise questions about how Letteney ever could have thought they were.

They include, "Content requests a copy of the resolution creating the Redevelopment Authority and its composition. Nothing about this email or its contents reflects legal processes or thoughts."

The judge's determination on another email: "Content fully disclosed at the Committee of the Whole meeting of July 18, 2017, videotaped, and available for public viewing on the City of Racine website. There exists no expectation of privacy."

Ethics case on hold

Meanwhile, the referral to the Ethics Board for an advisory opinion has been on hold since Weidner sued to get the records. Mary Wyant, a retired probate lawyer who chairs the board, said she was also kicked out of the initial court hearing on Weidner's case, when the judge announced he was sealing the proceedings.

The board consists of six members, all appointed by Racine's mayor for four-year terms. There are currently two vacancies.

Wyant said she's served more than 15 years and that many of those years the board only met once to receive financial disclosures required of some city officials. She said an advisory opinion would be just that; the board has no authority to impose sanctions.

Jim Spotick was also at the initial court hearing, with his video camera. Spotick is a city government watchdog who produces an online program called "Talking Racine." His take on the matter is that Letteney saw a power vacuum while an interim mayor was in office during the campaign and that city staff dreaded Weidner getting elected. 

Weidner also believes that if she hadn't been running for mayor, the whole email review and Ethics Board request would not have occurred.

Cory Mason, a former Democratic member of the state Assembly, beat Weidner in October with about 54% of the vote.

"We have probably the worst council I’ve seen — naive, inexperienced — and so the city attorney was trying to control it all himself," Spotick said. "Stuff never gets the light of day. He's scaring the other council members by making Sandy an example of what happens to 'troublemakers.' " 

Weidner said she has noticed a chilling effect. Her colleagues all seem to use email far less frequently since the Executive Committee presentation last year, she said.

"They don't even respond to an email congratulating them on a vote," she said. "Until that meeting, I don't think any aldermen ever gave a thought that their emails might be monitored."