Wis. decision shielding teacher e-mails not yet a problem for journalists

WISCONSIN -- Open-government advocates report no adverse impact on public access yet from the July Wisconsin Supreme Court ruling that teacher e-mails are not disclosable unless related to a government function. The decision could mean personal e-mails of all government employees are exempt from disclosure under the Wisconsin Public Records Law.

"Although the underlying laws vary somewhat, the strong consensus [of many state rulings] is that personal e-mails do not become public records merely because they were sent during a public employee's workday or using government computers and e-mail accounts," Chief Justice Shirley S. Abrahamson wrote in her plurality opinion.

According to Bill Leuders, Wisconsin Freedom of Information Council president, there has not been a press issue yet, but he thinks one will arise.

"I am pleased to learn there are still e-mails that see the light of day because they fall outside the narrow scope the Supreme Court sought to protect," Leuders said. "But it is just a matter of time before it is abused."

Schill v. Wisconsin Rapids School District began when activist Don Bubolz requested the personal e-mails of five Rapids School District teachers using the Wisconsin Public Records Act. He wanted to see if teachers disobeyed the ban on discussing school board elections. Bubolz said when he filed for the open records, he expected to get them without contest.

According to teacher Mark Larson, the personal e-mails consisted of nothing but appointments and quick notes to spouses, which had to happen on school e-mail accounts since all other e-mail servers were blocked on school computers. He said the request was motivated by politics.

"What this really was was an attempt to use the public records law to intimidate and silence teachers from expressing their views," Larson said. "There wasn't any reason other than our political views, that we were interested in the politics in town. The one thing that got my name on the list was that I had dared to write a letter to the editor."

Larson said he would have no issue with content-specific requests, several of which have been filled since the ruling, but was opposed to Bubolz's self-admitted "fishing scheme."

Former superintendent Bob Crist had intended to honor the request for the e-mails until the five teachers filed for an injunction.

"According to [school attorney] Bob Burns the state law pretty much stated that we were obligated to release the records," Crist said.

While the Wisconsin court concluded that the e-mails should remain undisclosed, the justices could not reach a majority agreement as to the legal reasoning. They therefore issued multiple opinions.

The plurality opinion in the July decision was that the e-mails were not public records. However in the opinion Abrahamson alluded to the concurring opinion's balancing test reasoning. It reasoned public employees' need for personal e-mails outweighs the public's need to know about private matters unless it is related to a conduct violation.

"Stripping a public employee of his or her privacy in the contents of personal e-mails simply because he or she works for the government might hamper productivity, negatively impact employee morale, and undermine recruiting and retention of government employees," Abrahamson wrote in the plurality opinion.

Both sides said the case was as much about clarifying the existing law as it was about this specific issue.

Abrahamson made clear that this case dealt strictly with personal e-mail content, but does not keep administrators from gathering statistics on personal e-mails or investigating content while conducting a teacher conduct investigation.

"It is a little bit nebulous," Crist said. "The way I interpret it is you can release any information as long as you redact anything related to pupils and personal e-mail information."

Leuders said after the decision he did a personal test by requesting the personal e-mails for one day from a city attorney. Lauders said the attorney gave up all five personal e-mails from that day.

"What is interesting about that is if the court were applying the balancing test, they would say no, you don't need to know that," Lauders said. "When it was himself applying the balance he said 'Hey, what do I care?'"

He was clear that the public could still always access statistical information about personal e-mails, like how many are sent each day from the school account.

Crist said he feels future superintendents will have to request legal counsel, meaning tax dollars, to understand what to do in a given situation. He said sifting through what is or is not personal e-mails adds a weight on the school system.

"A superintendent's job is difficult enough as custodian of the records, but to place them in a situation where you have to go through every single e-mail is a little bit ridiculous and time consuming," Crist said.

Larson said he agreed that sifting through e-mails would put a burden on the schools, but he thinks the ruling is fair. He agreed with the concurring judges that e-mail open records need the same scrutiny that comes with other forms of communication.

"If we were talking of telephone records there is a legal process involved -- there's probable cause, warrants, legal procedures -- but in the case of electronic transmission that has yet to be determined," Larson said. "There really does need to be some kind of due process for those requests."

A Michigan case decided in January went a step further, saying teacher e-mails, even if the account was to be exclusively professional, were not public records under the Michigan Freedom of Information Act. West Virginia's highest court decided in 2009 that personal e-mails of government employees are not public records, even if the e-mails are between a judge and the party of a major pending trial. Courts in Florida, Arizona and Idaho have ruled similarly.

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