February: Keep electronic communications open

2011 Columns

Wisconsin’s open records and open meetings laws are decades old, passed long before the Internet was even a twinkle in Al Gore’s eye.

While the state’s open records law explicitly includes electronic records, it falls short of providing clear guidance in every situation. And that creates problems in an age where the Internet and e-mail are essential means of communication.

The Attorney General’s office has long held that e-mail messages discussing government business are subject to disclosure under the open records law. But for years, no one knew whether the same was true for personal e-mail messages stored on government servers.

Last summer, in a case known as Schill v. Wisconsin Rapids, the state Supreme Court held that “purely personal” e-mail messages on government servers are not typically subject to disclosure under the law. But e-mails that relate to a violation of law or policy should still be disclosed.

The public, the court said, has a legitimate interest in “monitoring how the resources it finances are used by government employees and in reviewing the conduct of disciplinary investigations.” For this reason, Wisconsin Attorney General J.B. Van Hollen has recommended that the “purely personal” exception to disclosing e-mails be narrowly construed.

Van Hollen’s office also recently pondered whether a Google group site called “Making Salem Better” ran afoul of the open records law. The group was created by the town of Salem chair and was used to discuss town business, though access was provided only by permission. The attorney general determined that records related to the site were subject to the open records law.

Electronic communications can also lead to pitfalls under the open meetings law, which requires governmental bodies to post notices of meetings and conduct business in open session. Last year, the Attorney General’s office was asked to evaluate one city committee’s practice of voting by e-mail outside of regularly scheduled meetings, then affirming those votes in a later, in-person meeting under the heading “Old Business.”

The office concluded that e-mail voting violated the law’s requirement that all meetings be conducted in the open, and expressed skepticism that e-mail meetings could be properly noticed in any case.

Also, in March 2010, the Attorney General’s office evaluated an e-mail exchange among village board members that discussed village issues over a six-hour period, including an appointment process the village was considering. The office had previously recognized that discussions occurring on e-mail or through posts to a website would likely constitute a “meeting” subject to the open meetings law’s requirements.

In the end, the village recognized that using e-mail to discuss issues—even without making a decision—can deprive the public of its right to understand the basis of government decisions, and took steps to discourage such discussions.

There is much need for the state to set consistent rules regarding how long electronic records must be kept and by whom. Expect more discussion and litigation of the Supreme Court’s ruling in Schill, as well as decisions on social networking and Tweeting.

In the meantime, the public should continue to be vigilant, to ensure that government officials are not using new technology to keep the people it serves in the dark.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), dedicated to open meetings and open records. Christa Westerberg, the council vice president, is an attorney at McGillivray Westerberg & Bender, LLC, in Madison.