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Legislative Privilege, § 13.96 – “Confidential” Distinguished from “Privileged”

Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65, reconsideration denied, 2004 WI 149

Issue/Holding:

¶11  Wahl contends that Wis. Stat. § 13.96, as it interacts with Wis. Stat. § 905.01, creates a statutory privilege that, while not expressly stated, is implicit in LTSB’s obligation to treat all information within its possession as confidential.  Therefore, as the legal custodian of the information stored by the LTSB, he is not required to comply with the subpoena.[4]  The State[5] contends that the confidentiality provision of § 13.96 prevents voluntary disclosure to one who does not have proper authorization to receive the stored data, but that it is insufficient to excuse noncompliance with a valid John Doe subpoena.  We agree with the State.

¶13. Wisconsin Stat. § 13.96 was created by 1997 Wis. Act 27, § 18m as a response to the legislature’s ever-increasing reliance on computer-assisted communications. The LTSB serves legislators who belong to all political parties, and it warehouses data that the recipients and creators may deem confidential. Section 13.96 provides in relevant part:

The legislative technology services bureau shall be strictly nonpartisan and shall at all times observe the confidential nature of the data and information originated, maintained or processed by electronic equipment supported by it.

Wahl relies on the § 13.96 mandate of confidentiality as a connection to Wis. Stat. § 905.01, which addresses privileges. He asserts this mandate creates an “implicit” statutory privilege. …

¶14. However, just because data is to be kept confidential, it does not necessarily follow that Wahl has a legal privilege not to produce it. The concepts of “confidential” and “legal privilege” are very different.

¶15. “Confidential” data is that which is “meant to be kept secret.” Black’s Law Dictionary 294 (7th ed. 1999). Legal privilege is a broader concept. It includes having the legal right not to provide certain data when faced with a valid subpoena….

¶16. Additionally, privileges are the exception and not the rule; therefore, they are narrowly construed….

¶17. Furthermore, it is a “well-accepted legal principle, a fundamental tenet of our modern legal system, . . . that the public has a right to every person’s evidence except for those persons protected by a constitutional, common-law, or statutory privilege.” State v. Gilbert, 109 Wis. 2d 501, 505, 326 N.W.2d 744 (1982). See United States v. Nixon, 418 U.S. 683, 709 (1974). Wisconsin Stat. § 905.01 reaffirms this fundamental legal principle, since it states that testimony and production of things requested is the general rule and provides exceptions only in very limited circumstances, as we have explained in Gilbert. See Gilbert, 109 Wis. 2d at 508. Furthermore, we agree with the reasoning stated in Nixon that “these exceptions . . . are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Nixon, 418 U.S. at 710. Accordingly, we conclude that the confidentiality requirement of Wis. Stat. § 13.96 does not create a privilege for Wahl to refuse to comply with the subpoena duces tecum of the John Doe judge.

All well and good, but simply doesn’t explain how or why the court managed to conflate confidentiality with privilege in the attorney-client context, State v. Meeks, 2003 WI 104. Whether you agree or not with the result in Meeks is irrelevant: what the court said with respect to § 13.96 could as easily been said with respect to separating out SCR confidentiality from evidentiary privilege. But the court didn’t do that. Might simply be that the court is going to tread much more carefully in the area of attorney-client confidences than in other areas, and it might be wise to keep that in mind.

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