November: Public’s business shouldn’t be ‘private’

2012 Columns

Dee Hall

Wisconsin’s Open Records Law asserts the public’s right to the “greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”

But the law’s reach has been tested in recent years by electronic communications that are easily sent — and just as easily deleted — from officials’ email and cellphone accounts.

In May, the Wisconsin State Journal reported that Madison Common Council members were sending email and text messages during council meetings, holding essentially private discussions on matters that were supposed to be debated in public.

State Journal reporter Dean Mosiman obtained 7,656 emails and hundreds of texts exchanged during council meetings. He found that council members engaged in back-channel chatter with colleagues, lobbyists, staff and constituents on issues ranging from the silly to the substantive, including multi-million dollar subsidies for a proposed redevelopment project.

“Whether or not such communications violate the state’s open meetings law, they certainly run contrary to the notion that substantive discussions of public issues should occur in the open,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “For members to confer and even strategize privately erodes trust in the process.”

The Wisconsin Supreme Court in 2010 ruled that emails sent and received by teachers through the Wisconsin Rapids School District’s email system were public records, but that purely personal communications could be withheld.

Attorney General J.B. Van Hollen issued a memorandum seeking to clarify the decision.

“If there is any aspect of the email that may shed light on governmental functions and responsibilities, “ Van Hollen wrote, “the relevant content must be released as any other record would be released under the Public Records Law.”

On Oct. 1, the Center for Media and Democracy and Common Cause in Wisconsin sued a handful of Republican lawmakers, saying they failed to comply with a public-records request to turn over emails sent from their personal accounts. The groups accuse the lawmakers of seeking to shield their correspondence with the controversial American Legislative Exchange Council (ALEC), a business-funded group.

The case was settled out of court, with the defendants acknowledging that official emails on personal accounts are subject to the Open Records Law and agreeing to provide these records.

More recently, Nino Amato, executive director of the Coalition of Wisconsin Aging Groups, alleged that officials from the state Department of Health Services used private email accounts to discuss state business regarding contracts with CWAG. Amato said he obtained the emails by filing a formal complaint with the state and demanding them under a legal discovery process.

In deposition testimony, one of the officials involved admitted using her private email account because “I was hoping to keep this private.”

In its public records compliance guide, Van Hollen’s office has advised that officials cannot evade the open-records law by communicating on private email accounts. “Email conducting government business sent or received on  the personal email account of an authority’s officer or employee also constitutes a (public) record,” the guide states.

The Wisconsin Freedom of Information Council believes the state should consider taking several additional steps to address the problems posed by new technology. Among them:

  • Bar members of deliberative bodies from engaging in electronic chatter — emails, text messages and instant messages — on issues under discussion.
  • Require that public officials use only their official government accounts, whenever possible, to conduct government business.
  • Establish consistent rules for the retention and retrieval of electronic communications involving government business.

The deliberations that go into making public policy should be conducted with as much transparency as possible. We all have a stake in ensuring that our modern tools do not undermine Wisconsin’s long-held commitment to open government.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council, a non-profit group dedicated to open government. Dee J. Hall, a reporter with the Wisconsin State Journal, is the group’s secretary.