Schill v. Wis. Rapids Sch. Dist.
| Decision Date | 16 July 2010 |
| Docket Number | No. 2008AP967-AC.,2008AP967-AC. |
| Citation | 2010 WI 86,786 N.W.2d 177 |
| Parties | Karen SCHILL, Traci Pronga, Kimberly Martin, Robert Dresser and Mark Larson, Plaintiffs-Appellants,v.WISCONSIN RAPIDS SCHOOL DISTRICT and Robert Crist, Defendants-Respondents,Don Bubolz, Intervenor-Respondent. |
| Court | Wisconsin Supreme Court |
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For the plaintiffs-appellants there were briefs by Jina L. Jonen and the Wisconsin Education Association Council, Madison, and oral argument by Jina L. Jonen.
For the defendants-respondents there were briefs by Robert W. Burns, Geoffrey A. Lacy, and Davis & Kuelthau, S.C., Green Bay, and oral argument by Robert W. Burns.
An amicus curiae brief was filed by Grant F. Langley, city attorney and Melanie R. Swank, assistant city attorney, Milwaukee; and Michael P. May, city attorney and Roger A. Allen, assistant city attorney, Madison, on behalf of the Office of the Milwaukee City Attorney and the Office of the Madison City Attorney.
An amicus curiae brief was filed by Andrew T. Phillips, Patrick C. Henneger, and Centofanti Phillips, S.C., Mequon, on behalf of the Wisconsin Counties Association.
An amicus curiae brief was filed by Bruce F. Ehlke and Ehlke, Gartzke, Bero-Lehmann & Lounsbury, S.C., Madison, on behalf of AFSCME District Council 40.
An amicus curiae brief was filed by Tamara B. Packard, Lester A. Pines, and Cullen Weston Pines & Bach LLP, Madison, on behalf of Madison Teachers, Inc.
An amicus curiae brief was filed by Robert J. Dreps and Godfrey & Kahn, S.C., Madison, and Jennifer L. Peterson and Journal Communications, Inc., Milwaukee, on behalf of the Wisconsin Freedom of Information Council, the Wisconsin Broadcasters Association, the Wisconsin Newspaper Association, the Milwaukee Journal Sentinel, Journal Broadcast Group, Inc., and the Associated Press.
An amicus curiae brief was filed by Jennifer Sloan Lattis, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general, on behalf of the Department of Justice.
ON CERTIFICATION FROM THE COURT OF APPEALS
¶ 1
If Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State. All branches of Wisconsin government have, over many years, kept a strong commitment to transparent government.
¶ 2 Open records and open meetings laws, that is, “Sunshine Laws,” 1
¶ 3 The legislature states the importance of open government and open records this way: “[I]t is ... the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts” of government officers and employees. 2
¶ 4 The court is asked in the instant case to apply the Public Records Law to e-mails, a technology not contemplated when the legislature enacted the Public Records Law.
¶ 5 When the Public Records Law was enacted, government employees no doubt wrote occasional personal notes in the workplace but mailed them, threw them away, or took them home. Now, these same kinds of personal communications are more likely to be created and saved on government-maintained computer networks. As a part of normal workplace operation, many government offices, like many private employers, have chosen to allow their employees to send and receive occasional personal messages on the employer's e-mail system.
¶ 6 There are good reasons why employers allow this practice. E-mail can enhance a worker's productivity. It is often the fastest and least disruptive way to do a brief personal communication during the work day, and employees who are forbidden or discouraged from occasional personal use of e-mail may simply need to take more time out of the day to accomplish the same tasks by other means. Reasonable government workplace policies in line with private sector practice help government attract and retain skilled employees.
¶ 7 In the present case, the court is asked to decide whether the contents of government employees' personal e-mails (that is, e-mails not related to government business) should be released to the public in keeping with the purpose and policy of the Sunshine Laws that the public be fully informed about the affairs of government and the official acts of government officers and employees.
¶ 8 Several other states have already addressed this issue. Each has concluded that the contents of government employees' personal e-mails are not information about the affairs of government and are therefore not open to the public under their respective open records acts. We know of no state that has reached the conclusion that the contents of such personal e-mails should be released to members of the public.
¶ 9 For the reasons set forth, we too now conclude that while government business is to be kept open, the contents of employees' personal e-mails are not a part of government business. Personal e-mails are therefore not always records within the meaning of Wis. Stat. § 19.32(2) simply because they are sent and received on government e-mail and computer systems.
* * *
¶ 10 This is an appeal from an order of the Circuit Court for Wood County, Charles A. Pollex, Judge, on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (2007-08).3 The circuit court ordered the Wisconsin Rapids School District to release to the record requester all e-mails of Karen Schill, Traci Pronga, Kimberly Martin, Robert Dresser, and Mark Larson (the Teachers), who are employed as teachers by the School District.4
¶ 11 The Teachers sent and received e-mails for personal use as well as professional use, using the school district e-mail accounts and District-owned computers during the time period specified by the requester.
¶ 12 The School District's written Internet Use Policy and Guidelines permit employees to use their district e-mail accounts for occasional personal use limited to times that do not interfere with the user's job responsibilities. Users of the School District's network and e-mail accounts are advised that “[a]ll district assigned e-mail accounts are owned by the district and, therefore, are not private”; that the School District “has an obligation to monitor network activity to maintain the integrity of the [network] and ensure adherence to district policies”; and that “the Network manager will not routinely inspect the contents of e-mail sent by district employees.” The Internet Use Policy and the Guidelines say nothing about access to the e-mails under the Public Records Law.
¶ 13 No allegation of improper use is at issue here. The School District and the Teachers agree that the Teachers did not violate the School District's written Internet Use Policy or Guidelines and that the content of the e-mails at issue is of a purely personal nature, with no connection to a government function.
¶ 14 This case does not involve the right of the government employer to monitor, review, or have access to the personal e-mails of public employees using the government e-mail system.
¶ 15 Rather, this case involves the right of a third party, a record requester, to review under the Public Records Law the personal e-mails of public sector employees who use government e-mail accounts and computers. 5 The status of these personal e-mails of public sector employees as records is a question of first impression in Wisconsin.
¶ 16 More specifically, this case poses the question of whether the contents of the Teachers' personal e-mails are records available to a requester under the Public Records Law, Wis. Stat. §§ 19.31-.39, where the e-mails are sent or received on government e-mail accounts and created or maintained on government-owned computers pursuant to the employer's permission for occasional personal use, and the content has no connection to a government function. We use the phrase “no connection to a government function” (and sometimes the phrase “work-related”) as a short-hand for the phrases in Wis. Stat. § 19.31, “the affairs of government,” “the official acts of officers and employees,” and “the conduct of governmental business,” which underlie the purpose for giving public access to documents. We need not, and do not, describe the contours of “connection to a government function” in this case because the parties agree that the contents of the e-mails at issue have no such connection.
¶ 17 This case has been presented raising only the question of whether the contents of public employees' personal e-mail communications created or stored on a government-owned system are “records” under the Wisconsin Public Records Law. The facts are not in dispute in this case. Numerous briefs filed in the instant case acknowledge explicitly or implicitly that the only e-mails at issue are those whose contents relate exclusively to personal matters. The release of e-mails whose contents relate to government business is not at issue in the instant case.
¶ 18 No one has asked the circuit court or this court to examine the contents of the e-mails in camera to determine whether the contents are personal or relate to government business or are a mixture of the two. Don Bubolz, the person who made the record request and is named as an intervenor in this proceeding, filed a response in the circuit court and a brief in the court of appeals, both of which this court has considered. Mr. Bubolz wants the contents of all of the Teachers' e-mails to be declared records under the Law regardless of whether the contents are personal or relate to government business.6
¶ 19 The interpretation and application of the Public Records Law is a question of law that this court determines independently of the circuit court and court of appeals but...
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