August: Email ruling a blow to openness

2010 Columns

It was like those legal dramas on TV. The judge, ruling from the bench, always starts out paying homage to some legal principle or perspective. Then there’s a “but” and the judge shifts gears, coming down firmly on the other side.

So it was with the Wisconsin Supreme Court’s recent ruling in a case known as Schill v. Wisconsin Rapids. Chief Justice Shirley Abrahamson, writing for the majority, began her decision by praising the state’s traditions of openness.

“If Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State,” wrote Abrahamson, saying officials here have for many years “kept a strong commitment to transparent government.”

And then she proceeded to take a small but significant step back from that commitment.

At issue was a citizen’s request for emails sent by five teachers in the Wisconsin Rapids school district, specifically to check how much work time they were spending on purely personal business. The school district – having made it clear to teachers that personal emails sent on their work computers are not private – agreed to comply. The teachers sued to block this, and the case ended up before the Supremes.

The court seemed torn in different directions, issuing four separate opinions in a complex and confusing 5-2 ruling. But, in the end, a majority concluded that purely personal communications by public employees should not be subject to release, unless these become part of a disciplinary investigation.

That might sound at first like a sensible thing to do – since, as Abrahamson argued, these purely personal communications have “no connection to a government function.”

But direct a little sunshine on this interpretation and it quickly withers and dies.

For starters, communications from teachers and other public employees sent on government equipment are not private, and the court’s ruling did not make them so. The employer still can review what is being sent and impose discipline on those who violate the rules set for use of this technology.

Public employees, like most private ones, would be well-advised to not use their work computers for sensitive personal communications. That leaves only personal communications that are not sensitive – pick up the kids, get a loaf of bread. And what’s the big deal if these are released?

The court, incredibly, made its ruling without ever reviewing the records that would have been released. It simply took the word of others as to their content, and made it the law of the Wisconsin that, from this time forward, the public must too.

Every action that sanctions official secrecy creates opportunities for abuse. It’s only a matter of time before some school administrator decides that teachers who spend their work time on some pet project are engaged in purely personal business unrelated to their “government function.”

The result in Schill v. Wisconsin Rapids was not unanticipated and it does not spell disaster for the state’s open records law. As Attorney General J.B. Van Hollen has explained, the public still has the right to obtain information about employees’ use of e-mail, just not the content.

But the decision is still a step in the wrong direction. Justice Patience Roggensack, in strong dissent, said the “broad exemption” carved out by the ruling “contravenes Wisconsin’s long history of transparency in and public access to actions of government employees. The lead opinion is contrary to the letter and spirit of the Public Records Law and is a disservice to the public’s interest in government oversight.”

Joining Roggensack in this dissent is Justice Annette Ziegler. Both deserve to be applauded for seeking to uphold the state’s traditions of openness, not just paying them lip service on the way to undermining them.

Your Right to Know is distributed by the Wisconsin Freedom of Information Council (, dedicated to protecting open meetings and open records. Bill Lueders is the group’s president.