By Joe Forward, Legal Writer, State Bar of Wisconsin

July 21, 2010 – Wisconsin’s public records law, which allows the public to make requests for records from governmental entities or employees, exempts personal emails that do not relate to a governmental function. That is, personal emails are not subject to disclosure upon request.

That is what the Wisconsin Supreme Court recently held in Schill v. Wisconsin Rapids School District, 2010 WI 86 (July 16, 2010), a case in which a group of school teachers sued to enjoin release of personal emails stored on the school district’s server.

Four separate opinions were filed in the case, asserting different conclusions. The lead opinion (Abrahamson, C.J., Crooks, J., and Prosser, J.) asserted that personal emails are not "records" under Wisconsin's public records law, and thus do not apply to a request for "records."  The remaining four justices disagreed. 

However, the court agreed 5-2 that a custodian of public records should not release the contents of emails that are purely personal and evince no violation of law or policy.

Justice Patience Roggensack filed a dissenting opinion, stating that such a ruling “contravenes Wisconsin’s long history of transparency in and public access to actions of government employees.” Justice Annette K. Ziegler joined the dissent.

Facts and procedure

Don Bubolz, a Wisconsin resident, sent the Wisconsin Rapids School District a records request for the emails of five named teachers during a 43-day period. Bubolz requested the emails to determine the teachers’ compliance with school district policies regarding computer usage.

The school district’s computer usage policy allowed “occasional personal use” of email but did not guarantee confidentiality. The school district notified the teachers of the intent to release emails, and the teachers filed suit in circuit court to enjoin release. The circuit court ordered the school district to release the emails to Bubolz.

The teachers appealed, and the case was certified to the supreme court as one of first impression in Wisconsin. The teachers argued that personal emails are not “records” under the Public Records Law requiring release of government records upon request.

Lead opinion

Pursuant to Wis. Stat. section 19.35(1)(a), any “requester” has a right to inspect any “record,” except as otherwise provided by law. The statutory definition of “record,” adopted in 1983, did not mention emails. The question before the court was whether the statutory definition of “record” includes personal emails.

Under section 19.32(2), record means “any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority.” However, an exception applies. That is, a “record" does not include “drafts, notes, preliminary computations and like materials prepared for the originator's personal use.” The court set out to determine whether personal emails fall into this exception.

The lead opinion, written by Chief Justice Abrahamson, concluded that emails could fall within a category of “like materials” but went on to decide whether the teachers’ emails were “prepared for the originator’s personal use.” To do this, the court reviewed legislative intent, applied statutory purpose, policy, construction and history, case law interpretations, executive branch interpretations, and other state interpretations of open records laws.

The court wrote: “All these avenues of interpretation lead to one conclusion: In determining whether a document is a record under [section] 19.32(2), the focus is on the content of the document. To be a record under [section] 19.32(2), the content of the document must have a connection to a government function.”

Whether that content is related to a government function, the court explained, “is more of a pragmatic inquiry than an elaborate legal analysis.” It concluded that the emails at issue were entirely personal. In the event that an email included both personal information and information connected to a governmental function, the court noted that a custodian may need to redact the personal information only.

However, the court explained that the contents of personal emails could become records under the Public Records Law if used as evidence in a disciplinary investigation or to investigate misuse of government resources. Here, the court explained, the teachers’ personal emails adhered to the school district’s policy allowing limited personal use. There was no investigation for misuse.

Since the majority concluded that personal emails are not records under the public records law, it did not decide whether the statutory presumption favoring disclosure is outweighed by a public interest favoring nondisclosure.

Concurrences

Justice Ann Walsh Bradley noted the case as one with “far-reaching effects” – a “bread and butter” issue of Wisconsin law because record custodians are often called upon to answer requests for governmental records.

Unlike the majority, Justice Bradley concluded that the personal emails are “records” under the statute, but the public interest weighs in favor of nondisclosure. That is, the public has an interest in hiring and retaining skilled employees, and advancing productivity among government workers.

Thus, Justice Bradley concluded that when the “content of an email is purely personal and evinces no violation of law or policy, the public interest in nondisclosure will always outweigh the public interest in disclosure.”

Like Justice Bradley, Justice Michael Gableman concluded that emails sent by a government employee are “records” under the public records law, but the public interest in nondisclosure always outweighs the public interest in disclosure when personal emails do not “evince a violation of any law or employer policy.”

Dissent

Justice Roggensack explained that creating an exception to the definition of “record” in the Public Records Law “grants government employees (here, teachers) a broad, blanket exception … when the teachers characterize their emails as ‘personal.’”

This broad exception, she wrote, “prevents the public from discovering what public employees are doing during the workday, in the workplace, using equipment purchased with public funds.”

A statutory construction that narrowly construes the term “record” to create an exception for personal emails, Justice Roggensack argued, contravenes the plain meaning of the statute. That is, section 19.31 states that the public records law “shall be construed in every instance with a presumption of complete public access,” and the lead opinion does not follow that directive.

Justice Roggensack also argued that an exception to disclosure for personal emails impairs a long history of transparent government, and creates a content-based exception even though the court has not seen the content of the emails.

Attorneys

Jina Jonen of the Wisconsin Education Association Council, Madison, represented the teachers. Robert Burns and Geoffrey Lacy of Davis & Kuelthau S.C., Green Bay, represented the Wisconsin Rapids School District.