High court rules personal e-mail is not public record

The Wisconsin Supreme Court limited the scope of the state’s open records law last week when it ruled that several teachers’ personal e-mail messages, though sent on school-owned computers from work e-mail addresses, were not public records.

“There is a distinction between allowing public oversight of employees’ use of public resources and invoking the Public Records Law to invade the private affairs of public employees by categorically revealing the contents of employees’ personal emails. Disclosure of the contents of the Teachers’ personal emails does not keep the electorate informed about the government and sheds no light on ‘official acts’ or ‘the affairs of government,’” the court opined Friday in its opinion in Schill v. Wisconsin Rapids School Dist.

The case was filed by a group of teachers against their school board and superintendent when a resident of the town requested records of the teachers’ e-mail, both public and private. While the teachers raised no qualms with releasing copies of their work-related e-mail, they resisted handing over personal e-mail sent and received on their work computers, according to the state Supreme Court opinion. The teachers filed a motion to stop the school board from releasing copies of the disputed e-mail.

The Circuit Court for Wood County, the first court to hear the case, decided that the e-mail should be released to Don Bubolz, the private citizen who filed the public records request for e-mail sent by the teachers. But on appeal, the Wisconsin Supreme Court, in an opinion written by Chief Justice Shirley S. Abrahamson, said that because teachers’ personal e-mail could not be considered “records” under the state’s laws, it was not subject to the public records request.

“In determining whether a document is a record under [Wisconsin Public Records Law], the focus is on the content of the document. To be a record . . . the content of the document must have a connection to a government function. In the instant case, the contents of the Teachers’ personal e-mails have no connection to a government function and therefore are not records,” the court held.

The 1983 statute — written before teachers used e-mail for work communications — defines a “record” as “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” but exempts "materials which are purely the personal property of the custodian and have no relation to his or her office."

The court said it also looked to the legislative statement on the creation of the law. The opinion states, “The legislature’s statement supports the requirement that to be a ‘record,’ the content of a document must have a connection to a government function, that is, the content must relate to "the affairs of government,’ ‘the official acts" of officers and employees, or ‘the conduct of governmental business.’”

Although the court said the documents in the Schill case weren’t considered records, there could be a situation, such as when an e-mail message played a role in a disciplinary investigation of a teacher, in which personal e-mail is a record. In the Schill case, however, there was no such issue.

Wisconsin is not the first state high court to decide personal e-mail, even when sent from government-owned computers, is not a public record. Other recent decisions were made by courts in West Virginia, Michigan and the District of Columbia.