Nov. 10, 2009 – During today’s oral arguments at the Wisconsin Supreme Court, justices quizzed lawyers as to whether exceptions within Wisconsin’s open records law are broad enough to shield government employees’ personal emails from disclosure.
In Schill v. Wisconsin Rapids School District, 2008AP967, five teachers sought to enjoin the release of their personal emails following a citizen’s inquiry into potential violations of the school district’s policies prohibiting email discussion of school board elections.
The teachers argue that the emails regarding child care arrangements, messages to a spouse, and other private matters fall outside of the term “record,” as defined by Wis. Stat. section 19.32 (2). Specifically, “record” does not include “drafts, notes, preliminary computations and like materials prepared for the originator’s personal use.”
Although the district acknowledged that the emails in question did not concern public business, the district argued that the emails could not be for personal use because they had been sent to another. Further, the district said that the emails were within its possession, making them records subject to disclosure. The district argued that the teacher’s privacy concerns did not outweigh the statute’s strong presumption in favor of release.
The district told the court that this is an issue of first impression and it sought judicial review to clarify its duties under the open records law.
‘Like materials’
Justices grappled with the teachers’ argument that emails are incorporated into the statutory exclusion through the phrase “like materials.”
Chief Justice Shirley Abrahamson remarked that “like materials” must be intended to broaden the scope of the exclusion, but she wondered what would limit its reach. Attorney Jina Jonen, representing the teachers, suggested that the breadth of “like materials” is only as great as necessary to further the statute’s purpose of making government transparent. If the material in question does not relate to official public business, it can fit within the “like materials” language.
When Abrahamson asked attorney Robert Burns, appearing for the school district, what should be considered “like materials,” Burns shifted attention to the statutory language concerning the “originator’s personal use.” Whatever the particular item among those listed, Burns argued that it falls outside of the exemption when its author passes it onto another.
Justice Patience Roggensack questioned whether the definition’s language is meant to be interpreted as a two-part test. To qualify as an exception, she reasoned, an item might have to be both “for personal use” and “a draft, note, preliminary computation and like materials.”
Privacy concerns
Justice David Prosser asked Burns to explain how the disclosure under the open records law of a public employee’s emails documenting both public and private conduct differs from law enforcement’s use of a wire tap on that employee’s phone. In the instance of a wire tap, Prosser noted, the employee at least has the protection of a warrant requirement.
Burns distinguished the wire tap on the basis that it is a simultaneous interception of a communication whereas the email is stored in the possession of the records custodian.
Prosser followed up, presenting the hypothetical in which he might ask for a daily release of Justice Ann Walsh Bradley’s emails under the open records law, which might not even necessitate alerting her of the request. Burns answered that such a “slippery slope” has always been a possibility inherent in the open records act, but that the state has chosen to embrace a strong presumption in favor of disclosure.
Reviewable?
The Wisconsin Department of Justice and the Wisconsin Freedom of Information Council, joined by news media organizations including the Milwaukee Journal Sentinel, filed amicus briefs arguing that state law does not permit review of the teachers’ objections.
In Woznicki v. Erickson, 202 Wis. 2d 178, and Milwaukee Teachers’ Educ. Ass’n v. Milwaukee Bd. of Sch. Dirs., 227 Wis. 2d 779, the Wisconsin Supreme Court found that individuals have a right to notice when records concerning them are sought and they have a right to seek judicial review before releasing the records. But the Legislature responded to Woznicki by narrowing the rights to notice and judicial review to specific instances in Wis. Stat. section 19.356(1). These teachers do not fall within the statute, the amicus briefs contend.
Jonen argued that this issue had not been raised in the lower courts and so the justices should consider it waived. But if the argument is not considered waived, Jonen asserted that the teachers’ action is covered by that portion of sec. 19.356 concerning records involved in the investigation of alleged violations of an employer’s policy.
Burns told the court that the amicus briefs’ interpretation of sec. 19.356 precluding pre-release judicial review would harm records custodians. A custodian could end up disclosing materials without guidance in an ambiguous areas such as the one presented in this case and then face a lawsuit afterward for damages caused.
Alex De Grand is the legal writer for the State Bar of Wisconsin.
