Wisconsin Court Says Teacher E-mails Are Private

Published July 16, 2010

MADISON, Wis. (AP) — Wisconsin government employees can safely send personal e-mail messages on their work computers without worrying that they will have to make them public, under a ruling Friday by the state Supreme Court.

The court ruled that just because a public employee uses a work computer to send an e-mail, it doesn't automatically make that message subject to the state's open records law. The 5-2 decision overturns a lower court ruling that ordered five Wisconsin Rapids School District teachers to turn over private messages.

"The Supreme Court took the state's openness statute and turned it into a secrecy mandate," said Bill Lueders, president of the Wisconsin Freedom of Information Council.

The state teachers union fought making the messages public as requested by Don Bubolz, a resident of the district who wanted to see what the teachers were writing on their work computers during a six-week period in 2007.

Bubolz, 63, said he thought the ruling would limit the public's ability to know whether teachers are wasting time during the workday sending personal e-mails.

"I think it's completely out of whack," he said of the ruling. "I know it's going to make it difficult to come up with more information in the future. ... I believe the public has a right to keep an eye on how our government money is being spent."

No state has ruled that private e-mails should be subject to open records disclosure, Chief Justice Shirley Abrahamson said in her majority ruling.

"While government business is to be kept open, the contents of employees' personal e-mails are not a part of government business," she said.

Abrahamson noted that e-mails were not contemplated when the state passed the open records law in the 1970s. Thirty years ago, government workers wrote personal messages and either mailed them or threw them away, but now they are instead put into e-mails, she said.

Despite the ruling, private e-mails could still be made public if they are evidence in a disciplinary hearing or to investigate the misuse of government resources, Abrahamson said. The opinion does allow for the public to get some information about personal e-mails, such as how many were sent and at what time, just not the content of the messages.

Even so, the public will not be able to find out on their own whether public employees are engaging in illegal activity like campaigning while at work, said Bob Dreps, an attorney representing media organizations that had argued the e-mails should be made public.

The dissenting justices cautioned that the ruling will provide a blanket exception for government workers to sidestep the open records law simply by claiming their e-mails are personal.

"This broad exception prevents the public from discovering what public employees are doing during the workday, in the workplace, using equipment purchased with public funds," said Justice Patience Roggensack. "In so doing, the court contravenes Wisconsin's long history of transparency in and public access to actions of government employees."

Roggensack was joined in the dissent by Justice Annette Ziegler.

Lueders said the decision increases the opportunities for abuse of the open records law by putting more responsibility on records custodians to determine which e-mails are personal and therefore exempt and which ones should be released.

"How closely can or should public officials be expected to scrutinize these records?" Lueders said. "If you want to plot against the boss, just be sure to use the subject line 'remember honey to get that loaf of bread.'"

Bob Burns, the attorney for the school district — which had argued all of the e-mails should have been released — agreed that it will be time-consuming and burdensome for records custodians to pore through e-mails to determine which ones are personal and which aren't.

The Wisconsin Education Association Council, which fought the release of the e-mails, praised the decision.

"It's sound public policy and we feel it really offers clarity around the public records law," said the teachers' union spokeswoman, Christina Brey.

The Associated Press, the Wisconsin Freedom of Information Council, the Wisconsin Broadcasters Association, the Wisconsin Newspapers Association, the Milwaukee Journal Sentinel and Journal Broadcast Group all filed a collective brief in the case calling for the e-mails to be released.

Dreps, the media attorney, said the opinion points to the need for the Legislature to update the public records law to address e-mail and other public records not contemplated 30 years ago.

Written by SCOTT BAUER,Associated Press Writer

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