It is becoming increasingly common for elected officials to use electronic media such as websites or chat rooms to communicate with their constituents. While providing information or a forum to the voters is well intended, the sites and communications are likely public records, and the information exchanges may even constitute public meetings subject to the requirements of the Wisconsin Open Meetings Law.
The attorney general considered some of the potential pitfalls of using the electronic media as a constituent communication forum in an informal opinion regarding whether the public is entitled to access a private “Google Group” website maintained by an elected official under Wisconsin’s Public Records Law. [Informal Opinion of Wis Atty Gen. to Peckler-Dziki –I-01-10 (Dec. 23, 2009)]. An elected town chair created and maintained a website titled, “Making Salem Better.” As a private website, access was available only to certain individuals. The local media asked for access to the site and the chair refused stating that the site is not an official entity. The local media later obtained some documents from the site that made it clear the website was used to discuss various topics including items of town business. A reporter for the newspaper then requested an opinion from the attorney general on whether an elected official may discuss town business on a website with restricted access.
Attorney General Van Hollen considered two issues in his analysis. First, does the website, “Making Salem Better,” constitute a public record? Second, may an elected official maintain a website with restricted access?
Is the Site a Public Record?
The attorney general began by recognizing that the town chair is an “authority” under the public records law and that a record is:
Any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved regardless of the physical form or characteristics, which has been created or kept by an authority. (Emphasis in original)
He further reasoned that because the contents of the website are records created or kept by an authority, the town chair, they were public records subject to disclosure.
The attorney general acknowledged that personal “notes” or “drafts” prepared for the originator’s personal use and personal property unrelated to the authority’s office are not public records. However, “Making Salem Better” was not created for the town chair’s personal use, as other members had access to the materials and comments. Further, the website’s discussion of town business demonstrated that it had at least some relation to the town chair’s position. Is the Public Entitled to Access to the Site? Since the public records law only provides “a right to inspect a record and to make or receive a copy of a record,” the attorney general rejected an unrestricted right of access to the website. He stated, “The ‘right to inspect’ covers having access to and copies of record information, but not necessarily the right to participate in the discussion as a member of the Google group.” Therefore, the requester was entitled to receive copies of the material from the website, but not full membership in the Google group.
Open Meetings Issues?
The attorney general specifically limited his opinion to application of the Wisconsin Public Records Law because of his understanding that the participants in the private website would not constitute a quorum of any collective entity which has been delegated a portion of the creator’s authority or responsibility. If that understanding was incorrect, the attorney general stated that the website discussions could be subject to Wisconsin’s Open Meetings Law.
The attorney general’s opinion serves as a reminder to public officials of the expanding scope of Wisconsin’s Public Records Law prompted by the growth of electronic communications. What constitutes a record is determined by content rather than the form of a record, so the law’s scope is expanded by each change in communication technology. E-mails, text messages, voicemails and blog entries may all constitute public records. In particular, elected officials need to remain cognizant of the fact that they fall under the definition of an “authority” with the responsibility of maintaining the public records they create. Public officials should anticipate that any electronic communication—including e-mails, blog entries or comments on private websites—that relates to official business and is kept or maintained on a home computer, personal cell phones or elsewhere, is likely a record that must be maintained and is subject to request under the Wisconsin Public Records Law.