September 10, 2009
Are a Public School Teacher's Personal eMail Messages Disclosable as a Public Record?
The Wisconsin Supreme Court will decide later this fall whether personal public school teacher emails are public records. The case involves a citizen request for the emails of Wisconsin Rapids School District teachers conducted at their work computers from the time period of March 1, 2007 through April 23, 2007. The citizen, Don Bubolz admitted he was on a fishing expedition to see if teachers violated school policies by discussing school board elections. He argued that the emails were generated on taxpayer equipment and on taxpayer time. The teachers object as their work mail accounts have a mix of work-related and personal messages. They at least wanted the personal messages redacted. The trial court took a broad view of what constitutes a public record in Wisconsin under the language of Wisconsin Statutes § 19.32(2):
(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. "Record" includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. "Record" does not include drafts, notes, preliminary computations and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or bequest; and published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.
§ 19.31 provides for "a presumption of complete public access, consistent with the conduct of governmental business."
It's the "personal use" exception at issue here in § 19.32(2), especially since the District's policy allows for the assigned governmental accounts to be used for personal purposes. I gather from the amicus briefs that a number of governmental entities in Wisconsin have similar policies. It is a case of first impression in Wisconsin. Florida has ruled on the issue saying that personal emails on government computers doesn't make them public records if they are unconnected to the business of government. Florida's public records law is similar to that of Wisconsin, State of Florida v. City of Clearwater, 863 So. 2d 149, 153 (Fla. 2003). Arizona has a similar ruling, Griffis v. Pinal County, 215 Ariz. 1, 156 P.3d 418, (Ariz. 2007). Idaho has ruled that personal emails are subject to disclosure if they relate to government work, otherwise not, Cowles Publ’g Co. v. Kootenai County Bd. of County Com’rs, 144 Idaho 259, 159 P.3d 896, 899-900 (Idaho, 2007). There is a Wisconsin case that favors disclosure of emails and other records when the discipline of a teacher revolves around excessive or unauthorized personal use of government computers, Zellner v. Cedarburg School District, 300 Wis.2d. 290, 731 N.W.2d 240. The present disclosure case is not a disciplinary case.
The School District says in its filing says it conducted an analysis under the statute and concluded that emails were not "preliminary" in that they were delivered to third parties in final form. The District also argues that by sending the email to a another party the use no longer becomes personal, because it has, in fact, been communicated to someone else. For the District, the content has nothing to do with defining what is personal. My reaction to that line of argument is, with apologies to Charles Dickens, if the law supposes that, the law is an ass. I tend to agree with the other state courts that have addressed the issue. They interpret personal as content not related to government work and not disclosable. That approach seems too pragmatic for the District.
The fact that these cases come up should alert anyone working in a government/state job that mixing work and personal matters on a work email account is a bad idea. The law as written could be more specific to avoid these kinds of case and administrative interpretations. In lieu of that, however, there are some practical steps individuals can take to avoid disclosure of personal email. One is to access one of the many web-based free email services for personal communications. Granted that some public entities restrict access to the general web for employees, but for those who don't, this is an option. It would have likely been an option at the District as they allowed personal use of government computers. At the same time, don't use personal email for work related issues. A private email account is under the control of the employee and not the government employer. Work related content in private email may become a public document in some circumstance, and may be subject to discovery or disclosure no matter who controls the account.
There is a general feeling that even though email has a sense of privacy in the communication, it really doesn't work that way. Any recipient can forward or otherwise expose content to anyone else. It may be a bit extreme to say if it can't be said to the world, it shouldn't be said at all. That approach is obviously not practical in a lot of situations. For purely personal materials, however, it should lurk in the background.
The story on the case is from the State Bar of Wisconsin web site, and the briefs are at the Wisconsin Court System web site. The action is titled Karen Schill v. Wisconsin Rapids School District, Appeal Number 2008AP000967 - AC [MG]
The opinion is out now
it's a big, messy opinion with dissent, would love to see you chew on it.
Posted by: Edward Vielmetti | Jul 16, 2010 1:30:49 PM