WISCONSIN — Open-government advocates report no adverse impacton public access yet from the July Wisconsin Supreme Court ruling that teachere-mails are not disclosable unless related to a government function. Thedecision could mean personal e-mails of all government employees are exempt fromdisclosure under the Wisconsin Public Records Law.
“Although the underlying laws vary somewhat, the strong consensus [of manystate rulings] is that personal e-mails do not become public records merelybecause they were sent during a public employee’s workday or using governmentcomputers and e-mail accounts,” Chief Justice Shirley S. Abrahamson wrote in herplurality opinion.
According to Bill Leuders, Wisconsin Freedom of Information Councilpresident, there has not been a press issue yet, but he thinks one will arise.
“I am pleased to learn there are still e-mails that see the light of daybecause they fall outside the narrow scope the Supreme Court sought to protect,”Leuders said. “But it is just a matter of time before it is abused.”
Schill v. Wisconsin Rapids School District began when activist DonBubolz requested the personal e-mails of five Rapids School District teachersusing the Wisconsin Public Records Act. He wanted to see if teachers disobeyedthe ban on discussing school board elections. Bubolz said when he filed for theopen records, he expected to get them without contest.
According to teacher Mark Larson, the personal e-mails consisted of nothingbut appointments and quick notes to spouses, which had to happen on schoole-mail accounts since all other e-mail servers were blocked on school computers.He said the request was motivated by politics.
“What this really was was an attempt to use the public records law tointimidate and silence teachers from expressing their views,” Larson said.”There wasn’t any reason other than our political views, that we were interestedin the politics in town. The one thing that got my name on the list was that Ihad dared to write a letter to the editor.”
Larson said he would have no issue with content-specific requests, severalof which have been filled since the ruling, but was opposed to Bubolz’sself-admitted “fishing scheme.”
Former superintendent Bob Crist had intended to honor the request for thee-mails until the five teachers filed for an injunction.
“According to [school attorney] Bob Burns the state law pretty much statedthat we were obligated to release the records,” Crist said.
While the Wisconsin court concluded that the e-mails should remainundisclosed, the justices could not reach a majority agreement as to the legalreasoning. They therefore issued multiple opinions.
The plurality opinion in the July decision was that the e-mails were notpublic records. However in the opinion Abrahamson alluded to the concurringopinion’s balancing test reasoning. It reasoned public employees’ need forpersonal e-mails outweighs the public’s need to know about private mattersunless it is related to a conduct violation.
“Stripping a public employee of his or her privacy in the contents ofpersonal e-mails simply because he or she works for the government might hamperproductivity, negatively impact employee morale, and undermine recruiting andretention of government employees,” Abrahamson wrote in the plurality opinion.
Both sides said the case was as much about clarifying the existing law asit was about this specific issue.
Abrahamson made clear that this case dealt strictly with personal e-mailcontent, but does not keep administrators from gathering statistics on personale-mails or investigating content while conducting a teacher conductinvestigation.
“It is a little bit nebulous,” Crist said. “The way I interpret it is youcan release any information as long as you redact anything related to pupils andpersonal e-mail information.”
Leuders said after the decision he did a personal test by requesting thepersonal e-mails for one day from a city attorney. Lauders said the attorneygave up all five personal e-mails from that day.
“What is interesting about that is if the court were applying the balancingtest, they would say no, you don’t need to know that,” Lauders said. “When itwas himself applying the balance he said ‘Hey, what do I care?'”
He was clear that the public could still always access statisticalinformation about personal e-mails, like how many are sent each day from theschool account.
Crist said he feels future superintendents will have to request legalcounsel, meaning tax dollars, to understand what to do in a given situation. Hesaid sifting through what is or is not personal e-mails adds a weight on theschool system.
“A superintendent’s job is difficult enough as custodian of the records,but to place them in a situation where you have to go through every singlee-mail is a little bit ridiculous and time consuming,” Crist said.
Larson said he agreed that sifting through e-mails would put a burden onthe schools, but he thinks the ruling is fair. He agreed with the concurringjudges that e-mail open records need the same scrutiny that comes with otherforms of communication.
“If we were talking of telephone records there is a legal process involved– there’s probable cause, warrants, legal procedures — but in thecase of electronic transmission that has yet to be determined,” Larson said.”There really does need to be some kind of due process for thoserequests.”
A Michigan case decided in January went a step further, saying teachere-mails, even if the account was to be exclusively professional, were not publicrecords under the Michigan Freedom of Information Act. West Virginia’s highestcourt decided in 2009 that personal e-mails of government employees are notpublic records, even if the e-mails are between a judge and the party of a majorpending trial. Courts in Florida, Arizona and Idaho have ruled similarly.