By D&K’s Labor & Employment Team
E-mail is still the most commonly used of the many new forms of electronic media and communications options. Virtually all employees have access to computers and have assigned e-mail accounts through their employment.
E-mail communication, while beneficial, is not without its drawbacks. The proliferation of communications generated in this form, coupled with the unique mass archiving systems typically used to maintain such communications has created a complicated situation for public entities in relation to public records. In a case involving the Wisconsin Rapids School District, the Wisconsin Supreme Court ruled for the first time that “purely personal” e-mails of public employees may not be released by custodians pursuant to a public records request, provided that the e-mails “evince no violation of law or policy” [Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86 (July 16, 2010)].
This pronouncement is straight-forward, but application may prove complex. The court’s opinion, with two concurrences, one dissent and no majority opinion totaling 107 pages in length, is a fascinating example of just how complex this issue can be.
The Wisconsin Rapids School District received a public records request seeking access to all e-mails sent and received on the work e-mail accounts of five teachers over a six week period. The requestor did not limit the request to a particular topic.
The district analyzed whether the e-mails constituted “records” for the purposes of the public records law. First, the district determined that it did maintain the requested items. As with many public sector entities, the district has a comprehensive archiving system that maintains all e-mail communications in a searchable database. Therefore, the district concluded, the requested items were clearly “created or kept by an authority” under the public records law and, although voluminous, it could readily obtain the items requested.
Next, the district analyzed whether the requested materials were excluded from the definition of “records.” The exclusion under the public records law pertains to “drafts, notes, preliminary computations and like materials that are prepared for the originator’s personal use.” The district faced the question of whether e-mail communications kept by the public authority were excluded from the definition of “record” under the law if they were of a purely personal or private nature. The district considered the public records law’s broad statement concerning the presumption of access, and regular pronouncements from the Supreme Court that non-disclosure was appropriate only where public interests outweighed this presumption. Based on the circumstances, the district determined that the law required it to release the requested documents.
The Decision to Release – Redacting and Balancing
The district determined that the communications were public records primarily because the law provides no express exclusion to personal e-mails of public employees. The Supreme Court has previously held that records exclusions must be narrowly construed. Once the decision that the e-mails were public records was made, the district needed to review those documents to determine if there was any information in them that was prohibited from release by statute or common law. Medical references, addresses, phone numbers, bank account information and other information that is prohibited from release by law were redacted.
Next, the district considered the balancing test. The balancing test requires public record custodians to balance the public’s interest in disclosure against the public’s interest in non-disclosure once they have determined that a requested record is otherwise subject to release. In each case, it is the public interest that is relevant – not a private interest. In addition, custodians have previously been advised to favor access in the balancing process. In this case, the district determined that because the teacher’s general privacy interests were exclusively personal and thus private, the public interest in non-disclosure did not outweigh the presumption of access.
Notice to Records Subject and the Lower Court Decisions
Prior to release the district provided notice to the individual employees regarding its receipt of the request and intent to comply. The union representing the employees filed suit in Circuit Court to enjoin the release of those e-mails deemed “purely personal.” The union asserted that purely personal communications provide no insight into the workings of government and are therefore not “records” under the law. The district asserted as custodian that there is no clear guidance on the issue and therefore it could not determine based on the presumption of access that the request could be denied.
The Circuit Court noted that the public records law is to be interpreted in a manner that provides the public with the greatest possible information regarding the affairs of government. It then addressed the law’s exclusion for “notes, drafts, preliminary computations and like materials” created for the “personal use” of the originator. The court determined that e-mail communications delivered to another party were no longer for personal use and were no longer drafts, notes, etc. As such, the court ordered release of the records, subject to redaction of otherwise confidential components.
The union appealed the decision to the Court of Appeals. The Court of Appeals, recognizing the issue as one of first impression for Wisconsin courts, certified the case to the Wisconsin Supreme Court. Initially, the issue before the court was whether personal or private e-mail communications sent or received by public employees on their work e-mail accounts are “records” as that term is defined in the statute. If the court determined that personal e-mails are records, it was then asked whether the public interest in non-disclosure outweighed the public interest in disclosure.
The Supreme Court Holding in Brief
The Wisconsin Supreme Court’s opinion, released on Friday, July 16, 2010, reversed the Circuit Court Judge’s order requiring release of the e-mails. As a result, the Circuit Court Judge will have to issue an order enjoining release of “the contents of e-mails” that are “purely personal and evince no violation of law or policy.”
The primary question posed to the court—whether personal e-mail communications of public employees are “records” as that term is defined in the law—was answered in the affirmative by four of the seven justices. In other words, personal e-mail communications of public employees are not excluded from the definition of records under Wisconsin law. However, two of those four justices determined that although the e-mails were records, whenever “purely personal e-mails that evince no violation of law or policy” fall within the context of a request, the common law balancing test per se weighs in favor of the public’s interest against disclosure. Essentially the court held that the common law balancing test described above in the case of personal e-mails will always balance in favor of non-disclosure, unless those e-mails “evince a violation of law or policy.”
The Decision Analyzed
As noted, the bottom line of the decision is that custodians must review every e-mail to determine if (1) the contents of the e-mail are “purely personal,” and (2) it evinces no violation of law or policy.
How Does the Record’s Custodian Determine if Something is Purely Personal?
Whether the content of an e-mail is personal depends on whether it bears any relation to the affairs of government. The requestor in this case argued that the activities of public employees during their workday on government provided resources does relate to the affairs of government. The court disagreed with this and established a content-based analysis. With the exception of personal e-mail communications that are a part of an investigatory file, if the content of the e-mail does not relate to some function of the public entity and is instead a communication sent by an employee to further some private or personal interest (i.e. making social plans for the weekend or discussing the social events of the past weekend) then it is personal. The distinction implied by the court is whether the communication was intended to be private when made and whether it bears on some official function of the government entity.
As the court noted, often the distinction between purely personal and business-related content will not be difficult to discern. At the same time, the contents of many e-mails will fall into a more gray area. For example, is an e-mail to an employee’s spouse discussing the employee’s frustration with her job and lack of motivation at the office “purely personal”? It does not relate to the purpose of the government office and thus provides no insight into the affairs of government as that concept is now defined by this case. However, it is also not entirely disconnected from the employee’s government position. What about political communication supporting or not supporting a candidate running for a board seat? The court acknowledged that there may be cases that are mixed between personal and public, but left many of these distinctions for the custodians to work through in individual requests.
What Does it Mean to “Evince no Violation of Law or Policy”?
Once the custodian has determined that the contents of a particular e-mail are not related to the activities or affairs of the government entity and are thus personal, the custodian must then turn to the question of whether the e-mail “evinces” a violation of law or policy. As described in the concurring opinions, the public does not have any interest in access to personal e-mails that do not evince a violation of law or policy. Also, there is some amount of public interest in not subjecting the private communications of public employees to review by the public. This is why the concurring opinions find that the balancing test always weighs in favor of non-disclosure. However, once the personal content becomes evidence of or relates to a possible violation of law or policy, the public’s interest in access does arise and likely outweighs the interest in non-disclosure.
The term “evince” generally means “proof of” something. It does not mean that the e-mails must be part of an internal investigation into inappropriate conduct or the volume of personal usage. In some cases, this standard will be easy to apply. An e-mail to a spouse asking what’s for dinner is personal and likely does not evince a violation of law or policy. Conversely, an e-mail to a friend about plans to steal a car may be personal, but it clearly evinces a violation of law—even if nothing is ever done in furtherance of the scheme.
The court reached its decision in part on a privacy basis. Despite employer policies that may strongly state otherwise, public employees now appear to have an expectation of privacy in their personal e-mails sent or received on government-owned e-mail systems. The extent of that privacy interest is not specifically defined, although it must be considered in public record requests. Regardless, the decision does not affect a public employer’s authority, as stated in policy, to review employee e-mail content, regardless of whether it is personal.
The Practical Effects
One of the more remarkable aspects of this case is that it is a plurality opinion. That is there is not a majority of the court that agreed on all aspects of the decision. The “lead opinion,” joined by three justices, determined the private e-mails were entirely personal and did not constitute records for the purposes of the public records law. Therefore the lead opinion states that there is no need to perform the balancing test.
Two justices issued separate concurring opinions that concluded the e-mails were public records, but that the balancing test determines that purely personal e-mails are not subject to disclosure unless they evince a violation of law or policy.
Finally, the dissent joined by two justices found that the e-mails were records that were subject to the balancing test. They further found that the plaintiff union failed to meet its burden to establish that the public interest in non-disclosure outweighed the interest in disclosure and therefore the records should have been released.
In order to reach the ultimate conclusion in this case, it is necessary to combine the decision of the dissent and the concurrences to establish that the e-mails are public records. Then the concurrences and the lead opinion must be combined to determine what test to apply to determine whether to release those records.
Without a majority opinion there is likely to be disagreement on exactly how to characterize particular e-mail communications and how to apply this decision. With such divergent opinions on the court, any change in the composition of the court could impact the ultimate decision.
To determine whether records are subject to release, public records custodians must review the contents of employee e-mails to determine whether they are personal and if so, whether they evince violation of law or policy. In addition, custodians must indicate to a requestor that they have denied, at least in part, a request for records and provide notice of the requestor’s right to seek court review of the denial. Presumably, that review would be limited to whether the withheld personal e-mails were in fact personal and did in fact evince no violation of law or policy.
There is a practical consideration to take from this case. As stated, the proliferation of e-mail and its retention within computer archive systems should give public entities pause to consider whether the current level of access is appropriate and maintainable. Does every employee need to have access to a work e-mail account? Do public employers need to improve their monitoring systems to better gauge how much e-mail is personal as opposed to business related. In other words, is the e-mail system actually being used primarily for work and only occasionally for personal reasons?
For more information about this decision or if you have questions, please contact your Davis & Kuelthau attorney.