Is an email a “record” subject to the Public Records Law?
Yes, an email sent to or from or within a municipality (municipal official or employee) concerning any municipal business is most likely a record subject to the open records law.
Be careful about what you write in an email. Unfortunately, people are often less careful about email exchanges than they might be in hard-copy correspondence such as letters or even faxes. Best practice is to educate municipal employees and officials that emails are generally going to be public records – don’t say anything in an email you wouldn’t want published in the newspaper.
Can a citizen demand emails from a municipality?
Generally, yes, a citizen may request emails under the open records law, and the municipality must provide an email unless it falls under one of the law’s specific exceptions. At its simplest, an email is no different from a letter or other type of public record. However, due to their electronic nature, emails do present some unique issues.
Municipal Response to Public Records Request for Emails:
In general, responding to a request for an email is no different than responding to a request for any other kind of government record.
Respond. The first guideline is that the law requires a response. You cannot ignore a request for a record. The law does not necessarily require the response that the person wanted, but it requires a response. Since there are exceptions to the open records law, some records should not be made available. Nevertheless, the municipality must respond by either: (1) making the records available; or (2) denying the request. If there are concerns or reasons the information should not be released, consult a municipal attorney as soon as possible, prior to responding.
Respond promptly, not necessarily immediately. The law requires a response “as soon as practicable and without delay.” While there is no exact timeframe specified by the statute, a municipality should respond within a reasonable time based on the size of the request and on staff availability and workload. If the request is simple, a reasonable response might be a day or two, or even the same day for some extremely routine documents. If the request is complicated and will be time consuming, a reasonable response time might be five to ten working days, or even longer. Again, if you suspect there are reasons the information should not be released, it is reasonable to delay responding until after consultation with a municipal attorney.
Ask for requests in writing. While the law permits oral requests, there is no penalty for asking that a request be in writing. A written request may prevent future “he said she said” arguments about whether or not the requester actually made a particular request.
Respond in writing. If a request will be denied, even partly, or a question exists about whether the request should be denied, consult a municipal attorney as soon as possible. If the municipality denies a written request, the denial must be in writing and state the reasons for the denial.
If you deny a record. If you deny a record, you should include a statement as follows: “To the extent this response constitutes a denial of any part of your request, be advised that this determination is subject to review by mandamus under Wisconsin Statutes § 19.37, or upon application to the attorney general or district attorney.”
Special Considerations for Responding to a Public Records Request for Emails:
Depending on the request, it is generally ok to print out emails and give the paper copy to the requester. However, if a request is for an “electronic” version of the email, an electronic version should be supplied. If a citizen requests an electronic version of the email in its “native” format, then that email should be supplied as an email (not a PDF). This electronic production requirement applies equally to emails sent to the municipality by citizens as it does to email sent from the municipality. Thus, a citizen who sends an email to a municipality risks release of that email, including that citizen’s email address and any other data that email may contain.
Of course, the exceptions to the Public Records Law apply to emails as well. Don’t release an email if you have reasons to suspect it should not be released. Consult with your municipal attorney.
Special Considerations for Personal Emails:
The best practice is to have separate email accounts for your personal email and work (government) email. Use your personal email account for personal emails, your work email account for work emails, and do not mix the two.
With that said, according to a Wisconsin Supreme Court decision (July 16, 2010), “personal emails” are not government records, and are thus not subject to a record request. See Schill v. Wisconsin Rapids School District, 2010 WI 86.
Even with the protection afforded personal emails by Schill, emails that mix personal and government business would be records subject to a request, and the personal information would need to be redacted. Again, a best practice would be for municipal employees and officials to steer clear of sending any personal emails from their work email systems, unless they are willing to risk that email being given to any citizen who asks for it. At the very least, do not mix personal and government business in the same email.
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