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| 11/24/2009 8:34:00 AM | Email this article • Print this article | Supreme Court to decide status of public employees' emails
Are personal emails on publicly-owned computers private?
In a case that could have far-reaching consequences for the state's open records laws, the Wisconsin Supreme Court is set to potentially decide whether the personal emails of public employees - written on government computers - are exempt from the state's open records' laws.
The justices have heard oral arguments in the case, Schill v. Wisconsin Rapids School District, in which five teachers are seeking to block release of their personal emails. In April 2007, a citizen, Don Bubolz, sent the district an open records' request for all emails from the teachers' school computers for the period March 1, 2007, through April 13, 2007.
The school district subsequently notified the teachers it would release the emails. The teachers filed suit in circuit court to stop the district from doing so.
They lost in that venue but, represented by the Wisconsin Education Association Council, appealed. The union asserts that private emails, which the school district acknowledges these were, cannot be construed as public records under the statutes.
On April 30, 2009, the court of appeals certified the case to the Supreme Court "to determine if the employees' personal emails are public records and if they are, whether public policy reasons outweigh the public's interest in disclosure."
In the case, a host of organizations, including the Wisconsin Freedom of Information Council and the state Department of Justice, have filed non-party briefs. The law presumes the emails to be public documents, the FOIC and others argue, while the DOJ maintains the teachers had no right to challenge the release at all.
Central issue
At the heart of the matter is whether private emails appropriately written on public computers and on public time are public records.
Nobody claims the teachers violated any policy by composing the personal emails. In fact, the district had a computer policy allowing them to access the district's email system for occasional personal use.
From the union's point of view, the law clearly exempted those communications from the open records statutes. Specifically, the union argued, a record as defined by law does not include "drafts, notes, preliminary computations and like materials prepared for the originator's personal use."
Because the teachers were allowed to use the district's email for nonwork-related communications, because the emails were not related to their official acts as district employees, and because they were not related to any official acts of the school district, WEAC argued, they were "like materials" prepared for personal use and thus were exempt.
"The teachers' emails containing solely content that was personal and not related to any school district business could only have been prepared strictly for their personal use," Jina Jonen, WEAC's attorney, wrote. "Thus they are not records as defined by the law."
What's more, she stated, citing the state's attorney general, the content of a communication determines whether a record is public, not the medium used, such as a school computer, or the format, such as an email.
In addition, she wrote, materials personally owned by a custodian that have no relation to his or her office are expressly exempted under the law.
"The teachers in this case do not dispute that the emails are the property of the district's custodian," Jonen wrote. "In addition, there is no dispute that these emails have no relation to the teachers' or the custodians' office. The purely personal emails are also not records under this exclusion in the statute."
Accordingly, the union asserted, emails to friends and family stored on government servers attach a public interest only when an abuse of the email system is alleged or substantiated.
Even if they are public records, Jonen wrote, no public interest would be served by releasing them. Under the balancing test, the interest of protecting privacy and reputational interests outweighed any interest in disclosure, she asserted.
"The public would not gain knowledge regarding the official acts of its government by ascertaining the information in these emails such as bank account numbers, personal health information, and off-duty social plans," she wrote. "Only the sender's and receiver's privacy interests would be damaged. Given the imbalance in weighing these interests, any presumption in favoring disclosure is overcome."
Fundamentally flawed
But that argument was fundamentally flawed, wrote Robert Dreps of Godfrey & Kahn, and Jennifer Peterson, of Journal Communications. The attorneys filed a nonparty brief on behalf of the FOIC, the Wisconsin Broadcasters Association, the Wisconsin Newspaper Association, the Milwaukee Journal Sentinel, Journal Broadcast Group, Inc., and The Associated Press.
The open records law is not a privacy statute, the attorneys argued, but an access statute.
"Public access to the emails of public employees is addressed on a regular basis by custodians across Wisconsin," they wrote. "In this case, the Court has heard from several custodians (as parties and amici) on how they respond to requests for 'personal' email. Based on Wisconsin's historical commitment to open government, the strong presumption of public access and the current language of the Open Records Law, however, only the School District is providing the public with 'the greatest possible information regarding the affairs of government' as it relates to email."
The custodians who concluded that emails on school computers were private and could not be disclosed were making a value judgment, the attorneys opined.
"That conclusion is not supported by the Open Records Law," they wrote. "With email especially, there is not always a bright line between public and 'private.' Reasonable people might disagree about whether emails with certain content are work-related: emails between government employees about recreational activities; emails between a government employee and an independent contractor about dinner reservations and a baseball game; emails between a government employee and his family member about a family event that includes a comment about governmental business."
Whether an email content is strictly work related or not is not dispositive under the statutory definition of a "record" in Wisconsin, Dreps and Peterson continued. What's more, they dismissed the union's contention that private emails qualified for an exemption as "drafts, notes, preliminary computations and like materials prepared for the originator's personal use."
"Wisconsin courts have consistently interpreted that exclusion based on whether the document was used 'for the purpose for which it was commissioned,'" Dreps and Peterson wrote, citing case law. "'Personal use' relates to the employee's 'own convenience.' No Wisconsin court has ever interpreted the 'personal use' exclusion to mean 'private content.'"
Second, they continued, emails stored on government servers are not "materials which are purely the personal property of the custodian and have no relation to his or her office," another exemption for which the union had argued.
"As an initial matter, the emails at issue are not the teachers' 'personal property' because the teachers are not the legal custodians of their emails," they wrote. "The maintenance, preservation and storage of email on government servers distinguish email from thank-you notes, grocery lists, and family photos kept exclusively in an employee's desk. Even telephone calls from government phones are different because the content is not preserved by the governmental body."
Due to the very nature of email, they continued, a government employee's email is not that employee's "personal property."
"Stated another way, a public employee's email in his or her government account always has a 'relation to his or her office,'" they wrote.
They also took issue with the assertion that only an alleged or substantiated "abuse" of the email system established a public interest in the employees' emails to friends and family.
"That argument should be rejected," they wrote. "The public interest is legislatively 'presumed,' and there is always a significant public interest in the quality of use of public resources. More than forty years ago, this Court rejected the plaintiff's policy argument when it concluded that there is a public interest in access to a report that did not lead to any disciplinary proceedings."
Dreps and Peterson said there was a public interest specifically in the emails in question.
"Here, the public interest in access - just to cite one - is to inform the public of whether the governmental body is 'derelict in [its] duty' of regulating the use of email," they wrote. "No public employee is required to use governmental resources to send or receive email with private content. When they do, the public has a significant interest in both the quantity and quality of that use, as well as the government employer's oversight of email usage."
Finally, they wrote, even if it is good public policy to exclude from public access the emails of public employees to their friends and family, that is not a matter the court should decide but one best left to the Legislature.
"This Court should not second guess the legislature's definition of 'record' by reading in an exclusion for 'personal' email," they wrote. "If the plaintiffs, or anyone else, want such an exclusion in the Open Records Law, the proper path is through the legislature, not the courts."
Legal competence
Another issue in the case is whether the teachers were entitled to any judicial review of the school district's decision to release the records in the first place.
They were not, Dreps and Peterson urged the court to declare, as did Wisconsin's attorney general, J.B. Van Hollen.
"This Court's decision on how the Open Records Law applies to email stored on government servers should await another day," Dreps and Peterson wrote.
They recalled a famous decision, Woznicki v. Erikson, in which the Wisconsin Supreme Court conferred upon individuals a right to notice when records concerning them were sought and gave them a broad right to seek judicial review before the records were released.
However, after the Woznicki ruling, the Legislature amended the law and narrowed the rights to notice and judicial review to specific instances.
"The legislature superseded Woznicki with a statutory procedure that requires notice and authorizes judicial review under strict time limits only before disclosing a narrow category of specified records: disciplinary records, records obtained by subpoena or search warrant, or records concerning private sector employees," Dreps and Peterson wrote. "The legislature mandated that, other than the subjects of records in these specific categories, no person has a right to notice or 'judicial review of the decision of an authority to provide a requester with access to a record.'"
Now that Woznicki has been "overturned" and superseded by that statute, they argued, the court should respect the Legislature's primacy over public policies governing public access to government records.
The attorney general agreed.
"The plain language of (the statute) unquestionably repealed Woznicki in applicable part, and provides no right of judicial review to the plaintiffs in this case," Van Hollen wrote.
"It is axiomatic that a court lacks competence to hear a judicial review when the petitioner lacks standing in the first instance," Van Hollen stated, quoting the statute limiting judicial review. "Despite clear guidance in the statute, the teachers filed this suit as a judicial review, but failed to allege any facts demonstrating that their cause of action was authorized either by (that statute) itself or any other law."
The school district failed to challenge the circuit court's competence to hear the case, Van Hollen stated, and neither the circuit court nor the court of appeals raised the issue.
"The result is that a train has arrived at the Wisconsin Supreme Court that should never have left the station," he wrote. "The court should not ignore plain language in the statutes at the heart of its or any courts' competence to hear the case."
Naturally, in its brief, the union did not agree. Because the issue of competence had not been raised in the lower courts, Jonen argued, the justices should consider it waived.
"As seen by the level of participation in this case, the Court's answer will impact all governmental bodies and public employees statewide," Jonen wrote. "Yet, upon this case's final arrival at this Court's doorstep, the DOJ and Broadcasters suddenly seek to have the Court dismiss the case because they assert that the circuit court lacked competency to review the District's decision to release the personal emails. However, the Court need not address the competency issue because any challenge to the court's competency must be raised in the circuit court or it is waived."
What's more, she wrote, the teachers had every right under the statute to challenge the release. Under the views of the DOJ, and of Dreps and Peterson, she wrote, the law would prevent a circuit court from considering any action to stop a record custodian from releasing information unless it fell within the narrow confines listed in the statute.
"However, their analysis is fatally flawed because under their theory, the government could release personnel evaluations, social security numbers, and even personally identifiable medical information in violation of the law, and not only the individuals affected, but also the courts, would be powerless to stop it," she wrote. "Public employees and other Wisconsin citizens who have records kept by the government would be left without any meaningful recourse other than at the ballot box."
The Legislature could not have intended such a result, she stated.
The bottom line was, she wrote, the court should decline improper and belated attempts to derail the case and should proceed quickly to a ruling on the merits of the teachers' claims
"Given the breakneck speed of technology in this digital age, record custodians, public employees and Wisconsin citizens cannot afford to wait for the next case regarding whether personal materials are public records to reach this stop," she stated.
Richard Moore can be reached at rmmoore1@verizon.net
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