Local Governments in particular are generally eager to provide assistance to businesses, and to "do business" with private companies, especially in the current economic climate. Reductions in shared revenues available from the state, layoffs of employees and the closure of businesses by local employers have placed renewed emphasis on economic development incentives. In addition, calls to cut governmental expenses may lead government to look to the private sector to provide certain services that have traditionally been provided by government itself.
Laws such as the federal Freedom on Information Act, and of the states promoting open government such as Wisconsin’s Open Meetings Law and Public Records Law, however, can create difficulties for private businesses seeking to take advantage of public funding and opportunities particularly where a private business is required to provide information it believes confidential or proprietary to governmental entities.
The Wisconsin Supreme Court recently expanded the definition of "governmental entity" for purposes of Wisconsin’s open government laws in the case of State v. Beaver Dam Area Development Corporation, 2008 WI 90 to potentially include economic development corporations of the kind communities have been making agreements with in an effort to promote business development. Economic development corporations typically assist communities in obtaining and negotiating with potential businesses to locate and operate withing the communities. Various factors are to be considered in making the determination whether such corporations constitute governmental entities, such as the extent of funding provided by local government, and the extent to which public officials may participate in the operation of such corporations. If they are found to constitute governmental entities, they would be required to comply with the Open Meetings Law and Public Records Law, which could make their meetings, operations and records open to public review and scrutiny.
Also, records of contractors who enter into agreements with government to provide traditionally governmental services are considered public records in Wisconsin, at least as to those records which are related to the performance of such services.
The law provides certain exceptions to the general requirement that meetings, and records, be open to the public. However, the government is granted considerable discretion in the use of these exceptions, and may be subject to litigation in the event a member of the public, or state regulators, believe the open government laws are being violated.
A business is well advised to exercise caution, therefore, when dealing with the government. If it is required to provide documentation to goverment of information it considers confidential or proprietary, for example, rather than submitting such documents into the possession of the government, it may want to consider simply making them availabe for review by governmental representatives at its place of business. Businesses and their attorneys should become familiar with the exceptions to the open government laws, and attempt to persuade governments of their applicability. Agreements committing government to hold information confidential will not necessarily be enforceable; local governments cannot agree to violate the law. Coordination with local governments and their legal counsel regarding the use and implementation of exceptions to the open government laws is essential, as actions taken by governmental entites in closed session may be void if they should have been taken in public session under the laws.