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4/16/2010 9:11:00 AM
Times denied copies of emails from county employee's computer
Other emails sent, received during period were deleted, not recoverable
Oneida County officials have denied The Lakeland Times access to more than 160 emails that were part of an open records request.

In response to the request, county and state officials also claimed that several emails from an 11-day period, which was part of The Times' request, had been deleted from the system and could no longer be recovered.

The open records request was made after this newspaper received a tip in early February that Traci Running, an employee in the Oneida County Clerk of Courts office, is alleged to have sent a number of personal emails while on the job.

The Times sought copies of emails that Running is alleged to have sent from a state-owned computer while at work between Jan. 1 and Feb. 12, 2010.

County clerk of courts Gina Olson, in response to that request, said she had reviewed 248 emails allegedly written by Running during that time span. Those emails were recovered from the Wisconsin archive system. Of those emails, 88 were submitted to The Times, 160 were not provided.

However, there were 11 days of emails - from Jan. 29 through Feb. 8 - that were not retrievable from their archive system. Those emails, apparently, had been deleted.

Olson, however, did retrieve other emails from Feb. 9-12 from the computer operated by Running.

Running is the department's chief deputy.

Olson and Jean Bousquet of the state courts archive system said the system is separate and distinct from any county-owned networking system and any county-owned computer hardware.

They said the reason the 160 emails were not being provided to The Times was based on the definition of "record" - an issue that could be decided soon by the Wisconsin Supreme Court.

County corporation counsel Brian Desmond, according to Olson, made the final determination about which emails to provide to The Times.

In the meantime, Olson said, "'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 who[m] the originator is working; materials which are purely personal property of the custodian and have no relation to his/her office.

"In reviewing these 160 emails there was nothing related to any business matter of the Oneida County Clerk of Courts Office contained in them. Therefore, they are purely personal property of (Running) and have no relation to the Clerk of Court's Office and are not considered 'records' to be released as responsive to your request."

Olson's conclusions indicate that Running is alleged to have sent more personal emails - by just less than a two-to-one margin - than those that were business-related.

Some emails provided

Of the 88 emails provided to The Times out of the 248 emails originally recovered, all but one were court-related.

However, it was that one email written by Running to county coordinator John Potters that has raised more questions about possible personal use of the computer and whether county officials knew about it.

Running wrote in a Feb. 9 email to Potters: "I did just go on to our cournet site regarding the use of email. Occasional and incidental personal use of the CCAP email system is permissible provided it does not interfere with work responsibilities, promote activities for political purposes or personal financial gain or increase operational costs to the CCAP system. I am by no means justifying my actions ... but we too are allowed use ... Lesson learned!!!"

A request for all previous emails sent to Potters was then made by The Times to confirm that Potters received Running's Feb. 9 communication. Potters confirmed he received it.

It is important to note that the 11-day period when county and state officials say many of Running's emails were deleted is the period that leads up to the Feb. 9 email sent by Running to Potters discussing the email policy.

By its language, it could indicate that previous messages or conversations had been sent or held by the two regarding the personal email issue.

Bousquet said the missing emails were deleted in a manner that was different from the way other emails for which The Times received copies were deleted. She also said she knows of no way to determine when or who deleted those emails.

"Apparently with the state archive system if a desktop user performs a 'delete and empty' action [as opposed to a simple 'delete' action] on their computer, the emails are deleted without back-up in the archiving system," Olson said in an April 7 letter.

That means the person working on the computer at the time the messages were deleted would have had to conduct two deliberate steps to delete the messages. Through this action they knew they were deleting the email messages forever.

After continued requests from The Lakeland Times, Olson responded in the April 7 letter that 15 additional emails from the period of Jan. 29 through Feb. 8 had been recovered. She said that after reviewing the 15 emails she would release copies of 10. She said she would not release the other five "as they are not defined under the open records law as 'records'." She said they were "purely the personal property of Ms. Running and have no relation to the clerk of court's office."

This means that several other emails were deleted and unavailable to be reviewed by The Times. It also means that, again by a ratio of about two-to-one, Running allegedly wrote more emails while at work that were considered her personal property than emails written during the same time on county or state business.

Another question remains: Were the emails deleted before or after The Lakeland Times made the open records request?

That cannot be determined using the methods that are currently available to the state and Oneida County.

The Times reviewed the copies of the 10 additional emails it was provided. All of them dealt with state- or county-related business.

At the end of her April 7 letter, Olson stated that she considered The Times "request to be fulfilled."

CCAP policy

Bousquet provided a copy of the Wisconsin Court System (CCAP) Internet and email policy which lists many rules, restrictions and regulations regarding the use of the system for accessing the Internet and for an employee sending personal email.

Among other things, the policy states: "Persons using CCAP-provided email shall not send chain mail, 'spam' or otherwise unnecessary email messages."

In addition, the policy says that "Users shall understand that anything transmitted via the Internet is subject to interception, reading, copying or modifying by others. Users shall not have any expectation of privacy while using a Wisconsin court system email account."

The email allegedly sent through Running's state court system email account mentioned earlier and dated Feb. 5, appeared to be part of a chain mail message, which according to the CCAP policy provided by Bousquet, could be an alleged violation of that policy.

When Olson was asked if taking part in a chain email on Running's computer could be considered a violation of policy she said she could not answer the question because Running's computer is state-owned and runs on a system that is separate from the county's.

The Times also asked Olson if deleting emails so quickly after they were sent was also department policy. She gave the same answer she had provided for the previous question.

State Supreme Court case

The Wisconsin Supreme Court is considering Schill v. Wisconsin Rapids School District to determine whether the personal emails of public employees that are maintained on publicly-owned computers are subject to disclosure under the public records law.

A decision on the case could come as soon as June.

In April 2007, a private citizen, Don Bubolz, filed a request with the Wisconsin Rapids School District under the public records law seeking all emails sent from the computers assigned to five teachers for the period of March 1, 2007, through April 13, 2007.

Bubolz later said he was making the request as a "fishing mission" to determine if the teachers had been using their district email accounts for more than just occasional personal messages. The district's computer use policy allowed its teachers and other employees to use the district's email for occasional personal use. District employees were advised that the district owns not only the computers, but the email accounts used by the employees.

The district informed the teachers that it intended to release all of the requested emails. It concluded that the emails constituted public records, in large part because they were maintained on a public computer network.

The teachers filed an action seeking an injunction to block the release of their personal emails. They did not object to the release of any emails regarding their work. The circuit court denied the injunction and affirmatively ordered the district to release all of the personal and work-related emails. The court directed the district to delete personal information, including home addresses, medical information, and bank account numbers.

The Supreme Court will decide whether the personal emails are "records" under the public records law. According to the parties and the Court of Appeals, there is no published case in Wisconsin that addresses whether purely personal emails kept on a public computers constitute public records under the statute.

If the emails are found to constitute records under the public records law, the Supreme Court will be called upon to perform a balancing act in deciding whether the presumption favoring disclosure of public records is overcome by the public interest in protecting the privacy and reputational rights of its citizens.

The Lakeland Times, in discussions with legal counsel, has decided to wait until a ruling is issued in the Schill case before it decides if it would want to proceed further in an effort to obtain all of the Oneida County employee's personal emails.

Joe VanDeLaarschot can be reached at jvandelaarschot@lakelandtimes.com.

Reader Comments

Posted: Thursday, April 22, 2010
Article comment by: A

This is absolutely unbelieveable. I find it outright pathetic that you are signalling out one person on something like this. I can guarantee that in every single business, office, school, church, etc, including yours there are people that are and have sent personal emails at one time or another. For you to point fingers at one person it is outrageous. This newpaper is a joke and I personally will never read it again or subscribe. More people should do this so it goes out of business. Write a story with some relevance and that people really care about rather than being on a WITCH HUNT!!!!

Posted: Wednesday, April 21, 2010
Article comment by: Missy

Unbelievable! Aren't there more pressing issues in this area besides someone supposedly sending personal e-mails while at work. Hope none of you at the Lakeland Times have ever made or received a personal phone call, e-mail, or went on-line to pick your fantasy football team or you might be the next one that someone wants to see what you do at work all day!!

Posted: Monday, April 19, 2010
Article comment by: bill

I was wondering if all the employees of the state and county emails will be checked, why is it only one person being singled out. It is only an email issue a probable concern in many businesses, this hardly seems news worthy. Why not put Mr. Pecor in the column? That is worthy news.

Posted: Sunday, April 18, 2010
Article comment by: name

when will you be filing open records requests for emails sent by people from library computers? Those are funded by taxpayer dollars, too, right?

Posted: Sunday, April 18, 2010
Article comment by: butch

Re:(nothing related to any business matter of the Oneida County Clerk in them, they are purely personal property of (Running) and have no relation to the Clerk of Court's Office and are not considered 'records)
If they were made on taxpayer funded computers, on county owned property there is no such thing as private. that was decided a couple years ago already!!

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