Municipal Law Alert, August 2010
A recent court decision has held that private emails are not “records” subject to the open records law. In a 5-2 decision in Karen Schill v. Wisconsin Rapids School District (2008AP967-AC), the Wisconsin Supreme Court held the emails were outside of the reach of the open records law even though the emails were sent using government email systems and government computers during work hours. Essentially the court said that government emails are subject to the open records law and private emails are not. Private emails are not “government business” and thus are not records subject to the open records law.
The facts in this case were not in dispute. A citizen made an open records request to the Wisconsin Rapids School District asking for emails “from the computers used by the teachers during the school day.” The School District evaluated the request and notified the teachers that it was going to release the emails. A group of teachers sought an injunction to stop the release of any personal emails, but the circuit court ruled in favor of releasing the personal emails. The teachers appealed the circuit court’s decision.
The District policy permitted the occasional use of the school computers for personal emails, and there was no allegation of any wrong doing on anyone’s part. Thus the appropriateness of the use of government computers for sending private emails was not at issue in this case. Nevertheless, the Supreme Court commented that it was good public policy to allow employees limited use of government computers to send personal emails. Noting that this was common practice in the private sector, the court stated that “the School District has made the very reasonable decision to allow occasional personal use of e-mail.” The Court also commented, “Flexible, common-sense workplace policies that allow occasional personal use of e-mail are in line with the mainstream of professional practice.” All parties agreed that the emails in question were personal emails and the teachers had not violated District policy.
Since there was no allegation of wrongdoing and no dispute over the basic facts, the decision hinged on the interpretation of Wisconsin’s open records law (Wis. Stat. §§ 19.31-19.39). The Court focused on the subject matter of the email, and stated that content, not location, was the determining factor in whether a record was a government record. (Although not discussed in this case, the converse may be implicit in the holding – that is, an email sent by a government official from a home computer using a personal email system but clearly concerning government business may be a record subject to an open records request.)
The Court also noted that it is appropriate for the public to evaluate the use of public resources and that monitoring an employee’s use of government systems to watch for abuse is appropriate. However, there is statistical information such as the quantity, time and dates of emails that would help monitor school district policy, as well as the potential to release the email with the personal information redacted. The Court stated that there is no need to “invade the private affairs of public employees by categorically revealing the contents of employees’ personal emails” to accomplish these goals. Although not expressly held by the majority, Justice Bradley’s concurrence stated unequivocally: “Lest there be any doubt, however, a clear rule has emerged: a custodian should not release the content of an email that is purely personal and evinces no violation of law or policy.”
While the decision in this case was clear, the Court noted that personal emails might become government records in certain circumstances. For example, “if the e-mails were used as evidence in a disciplinary investigation or to investigate the misuse of government resources, the personal e-mails would be records under Wis. Stat. § 19.32(2).” But unless there is some connection between the content of the email and government affairs, personal emails are not records subject to an open records request.