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.
No. 2008AP967-AC
Supreme Court of Wisconsin
July 16, 2010
2010 WI 86 | 786 N.W.2d 177 | 327 Wis. 2d 572
Oral argument November 10, 2009.
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 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.
¶ 1. SHIRLEY S. ABRAHAMSON, C.J. 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,” “are first and foremost a powerful tool for everyday people to keep track of what their government is up to.... The right of the people to monitor the
¶ 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
¶ 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
* * * *
¶ 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 pursu-
¶ 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
¶ 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,
¶ 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,
¶ 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 benefiting from the analyses of these courts.7
¶ 20. If the contents of the Teachers’ personal e-mails are records under the Public Records Law, then the court must undertake a balancing test to decide whether the statutory presumption favoring disclosure of public records is outweighed by any other public interest.8
¶ 21. In keeping with the court‘s past interpretations of the Public Records Law, we explore various avenues to interpret the word “record” as defined in
¶ 22. All these avenues of interpretation lead to one conclusion: In determining whether a document is a record under
¶ 23. In the instant case, the contents of the Teachers’ personal e-mails have no connection to a government function and therefore are not records under
¶ 25. For the reasons set forth, we reverse the order of the circuit court and remand the cause to the circuit court to enjoin the School District from releasing the contents of the Teachers’ personal e-mails.
I
¶ 26. The relevant facts are not in dispute. Don Bubolz, the records requester, filed a request with the School District pursuant to the Public Records Law.10
The public has an interest in monitoring how the resources it finances are used by government employees and in reviewing the conduct of disciplinary investigations. In several cases materials constituted records under
He requested e-mails for the period from March 1, 2007 through April 13, 2007 “from the computers [the Teachers] use during their school work day.”
¶ 27. The School District notified the Teachers that it intended to release all of their e-mails to the requester, regardless of content.11
¶ 28. The Teachers did not object to the release of their work-related e-mails, that is, e-mails with a connection to school district affairs or their official actions as public employees. The Teachers acknowledge that the public interest in monitoring appropriate use of e-mail and computer systems and compliance with policies limiting personal e-mail use could be satisfied by release of statistical information, including the num-
In the instant case, the requester described his request in a number of ways: He had a right to see the personal e-mails because the taxpayers paid for the equipment; the Teachers’ e-mails were official acts because they were sent on taxpayer time using taxpayer equipment; he needed to see the personal content of the e-mails to determine whether the Teachers violated the School District policy regarding use of the computer; and he needed to determine whether the Teachers used the e-mails to discuss elections of school board candidates. None of the e-mails at issue here relate to school board candidates. The Teachers have not objected to the release of any e-mails relating to school business.
At the circuit court, the requester stated that he was on a “fishing mission” to see how often the Teachers were using the school e-mails for personal use.
¶ 29. The Teachers commenced this action in the circuit court to enjoin the School District from releasing the contents of their personal e-mails, that is, e-mails that contain only personal information, whose contents have no connection to a governmental function. These personal e-mails include such messages as an e-mail from a teacher to her spouse about child care responsibilities and an e-mail from a friend to a teacher regarding social plans. The Teachers assert that an intrusion on their privacy should not occur simply by virtue of a computer system‘s ability to store information.
¶ 30. It is uncontested that the Teachers’ personal e-mails at issue were not prepared for work-related purposes. It is also uncontested that the contents of the e-mails at issue do not relate to the school district or government affairs or any official actions of the Teachers or other public officers or employees or the conduct of governmental business. Neither the Teachers nor the School District relied on the e-mails to make school district or government-related decisions.
¶ 31. The circuit court concluded that the Teachers’ personal e-mails were records under the statute. It then applied the balancing test and concluded that the personal e-mails should be disclosed.
¶ 33. The Teachers appealed. The court of appeals certified the case to this court.
¶ 34. In September 2009, after the Teachers and the School District finished their briefing, a number of non-party briefs were filed. Several media entities—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—joined in filing one brief. The Wisconsin Department of Justice, Madison Teachers, Inc., AFSCME District Council 40, the Offices of the Milwaukee and Madison City Attorneys, and the Wisconsin Counties Association each filed a non-party brief.
¶ 35. The briefs of the Media Entities and the Department of Justice challenged for the first time the circuit court‘s competence to hear the Teachers’ action. They interpret
¶ 36. At this court‘s request, the Teachers and the School District filed supplemental briefs addressing these late-rising issues, namely (1) whether the Teachers have standing to pursue the claims they raised in circuit court; (2) whether the circuit court had subject
II
¶ 37. As an initial matter, we determine the issues of standing and competence.
¶ 38. Whether a party has standing is a question of law that this court determines independent of the circuit court or court of appeals but benefitting from their analyses.12 Wisconsin courts evaluate standing as a matter of judicial policy rather than as a jurisdictional prerequisite.13 Courts construe standing broadly in favor of those seeking access.14 A person has standing to seek judicial review when that person has a personal stake in the outcome and is directly affected by the issues in controversy.15
¶ 39. The Teachers have a personal stake in the outcome in the present case and are directly affected by
¶ 40. With regard to the competence of the circuit court, the Department of Justice and the Media Entities argue that under
¶ 41.
Wis. Stat. § 19.356 Notice to record subject; right of action. (1) Except as authorized in this section or as otherwise provided by statute, no authority is required to notify a record subject prior to providing to a requester access to a record containing information pertaining to that record subject, and no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record.(2)(a) Except as provided in pars. (b) and (c) and as otherwise authorized or required by statute, if an authority decides under
s.19.35 to permit access to a record specified in this paragraph, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on any record subject to whom the record pertains, either by certified mail or by personally serving the notice on the record subject. The notice shall
briefly describe the requested record and include a description of the rights of the record subject under subs. (3) and (4). The paragraph applies only to the following records:
1. A record containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee‘s employer.
2. A record obtained by an authority through a subpoena or search warrant.
3. A record prepared by an employer other than an authority, if that record contains information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information (emphasis added).
¶ 42. The legislature apparently adopted
¶ 43. The Teachers argue that the circuit court was competent to proceed in the instant case because
¶ 44. The Teachers and the School District want this court to decide the substantive issue about the personal e-mails. The substantive issue is important to record custodians, record subjects, and record request-
The Joint Legislative Council Prefatory Note to 2003 Wis. Act 47 states the purpose of
Wis. Stat. § 19.356 as follows:This bill partially codifies Woznicki and Milwaukee Teachers’. In general, the bill applies the rights afforded by Woznicki and Milwaukee Teachers’ only to a defined set of records pertaining to employees residing in Wisconsin. As an overall construct, records relating to employees under the bill can be placed in the following 3 categories:
1. Employee-related records that may be released under the general balancing test without providing a right of notice or judicial review to the employee record subject.
2. Employee-related records that may be released under the balancing test only after a notice of impending release and the right of judicial review have been provided to the employee record subject.
3. Employee-related records that are absolutely closed to public access under the open records law.
¶ 45. Until the nonparty briefs were filed in this court, no party or nonparty had contested the competence of the circuit court to provide judicial review. Because the issue of the circuit court‘s competence was never raised in the circuit court, we treat the issue as having been forfeited.21 To allow amici to raise this
¶ 46. With regard to the competence of this court and the court of appeals, the circuit court‘s order to release the personal e-mails is a final and binding order for purposes of appeal. When this court grants review on certification it acquires jurisdiction of the entire case. No one asserts a failure to comply with any statutory procedure to invoke the jurisdiction of the court of appeals or this court. We therefore proceed to answer the important substantive question presented in this case.
III
¶ 47. Whether the Teachers’ personal e-mail communications on government computers are records under
¶ 48. The statutory definition does not refer explicitly to e-mails. The definition of “record” at issue was
¶ 49. In keeping with the court‘s past interpretations of the Public Records Law and with the provisions of the Public Records Law, we approach the statutory interpretation of the word “record” in
- We examine first the text of
Wis. Stat. § 19.32(2) defining “record” for purposes of the Public Records Law. The text is not definitively determinative of the question posed. - For guidance in interpreting the meaning of the word “record,” we turn to
Wis. Stat. § 19.31 , the legislature‘s explicit statement of its intent, the statutory purpose and policy, and its direction regarding the construction of the Public Records Law. The legislature‘s statement supports the requirement that to be a “record,” the content of a document must have a connection to a government function, that is, the content must relate to “the affairs of government,” “the official acts” of officers and employees, or “the conduct of governmental business.” - Statutory language is interpreted in relation to the language of closely related statutes. The lesson learned from examining the prior public records statutes and case law is that documents with no
- Statutory interpretation may be informed by executive branch interpretations of a statute. The opinions of the Wisconsin Attorney General are especially helpful in deciphering the definition of “record” in
Wis. Stat. § 19.32(2) . The Public Records Law has long been interpreted and administered to exclude from the meaning of “record” documents of purely personal content, sometimes referred to as “fugitive papers.” - Statutory interpretation may be informed by the legislative history of the definition of “record” in
Wis. Stat. § 19.32(2) . The legislative history supports interpreting “record” inWis. Stat. § 19.32(2) as requiring the content of a document to have a connection to a government function. - Statutory interpretation of the Wisconsin Public Records Law may be informed by the interpretations of other states of their open records laws. No states have been cited as including the contents of purely personal e-mails in their open records laws.
- The legislature would not have intended a court‘s interpretation of the word “record” in
Wis. Stat. § 19.32(2) to impose an unreasonable burden on custodians of records. Interpreting the definition of record inWis. Stat. § 19.32(2) to exclude e-mails of purely personal content does not impose an unreasonable administrative burden on custodians of records.
A
¶ 50. We examine first the text of
¶ 52. The first part of
¶ 53. The second part of
¶ 54. The third part of
¶ 55. The complete text of
[1]“Record” means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority.
[2]“Record” includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks.
[3]“Record” does not include drafts, notes, preliminary computations and like materials prepared for the originator‘s personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or bequest; and published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.
¶ 56. The Teachers and the School District agree, as do we, that e-mails can fall within the first part of
¶ 57. The second part of the definition of “record” in
¶ 58. The third part of the definition of “record” in
¶ 59. As a preliminary matter, it is clear that some materials that fall within the broad description of records in the first or second parts of
¶ 60. There is a question whether the Teachers’ personal e-mails fall within the exception of materials that are “purely the personal property of the custodian and have no relation to his or her office.” The School District‘s record custodian is Dr. Robert Crist, the Superintendent of Schools; the Teachers are not the custodians of the e-mails.
¶ 61. The legislative intent may have been to exclude from the word “record” personal property of any government employee (rather than merely the personal property of the custodian) that has no relation to his or her employment. One commentator observed that this language relating to the personal property of the custodian was added in 1983 “as a refinement of earlier case law which recognized some materials to be ‘fugitive papers’ and indicated that if such items had no relation to the function of the office, there was no requirement that they be kept as a public record.”25 We discuss the
¶ 62. We turn to whether the Teachers’ personal e-mails fall within the exception for “notes,” “drafts,” or “like materials prepared for the originator‘s personal use.” The words “notes,” “drafts,” and “like materials” should each be given distinct meanings, to avoid redundancy or “surplusage.”26
¶ 63. We agree with the School District that the Teachers’ personal e-mails do not fit easily into the statutory exclusion for “drafts.” The Teachers’ personal e-mails are final work products.
¶ 64. The word “notes” is susceptible of more than one meaning. The word ordinarily refers to a brief, informal document. An e-mail may well fit within this meaning.
¶ 65. The School District, however, urges a different meaning of “notes,” arguing that this exclusion from the definition of “record” should be limited to materials that are in preliminary draft form and that the Teachers’ e-mails are documents in “final form.”
¶ 66. The meaning of “like materials” is hardly self-explanatory. When two or more words or phrases
The Teachers reason that just as an authority cannot circumvent the Public Records Law by putting public records in the possession of a private entity, see WIREdata Inc. v. Village of Sussex, 2008 WI 69, ¶ 82, 310 Wis. 2d 397, 751 N.W.2d 736, private transmissions do not become records under the Public Records Law by virtue of their storage on government e-mail systems.
¶ 67. The words “like materials” plainly describe materials that are “like” notes and drafts but are not, by themselves, either of those things. The phrase therefore describes some broader set of materials that is “prepared for the originator‘s personal use.”
¶ 68. We turn then to the phrase “prepared for the originator‘s personal use.” The School District suggests that “personal” refers to the intended use of the material, not the content of the material. The School District contends that when the e-mail is sent, regardless of content, the communication is no longer “prepared for the originator‘s personal use” but is also intended for and prepared for the use of others, namely the recipient(s) of the e-mail. In contrast, the Teachers argue that a more logical reading of the words “for the
¶ 69. For support of its interpretation of “prepared for the originator‘s personal use,” the School District looks to State v. Panknin, 217 Wis. 2d 200, 212-13, 579 N.W.2d 52 (Ct. App. 1998), in which the court of appeals held that personal notes of a circuit court judge, even when “work related,” were not records under the Public Records Law, but were instead a “voluntary piece of work completed by the trial court for its own convenience and to facilitate the performance of its duties.”30 The Panknin court held that such notes did not have to be disclosed under the public records law “because disclosure would impede the work habits of the trial court.”31
¶ 70. The School District urges that the Teachers’ personal e-mails are not analogous to a judge‘s notes in Panknin, because the e-mails are not private working documents created for the Teachers’ own convenience. An e-mail that is sent to another person, according to the School District, is not prepared for the originator‘s personal deliberation, and therefore falls outside the meaning of “prepared for the originator‘s personal use.”
¶ 71. The School District also relies on Fox v. Bock, 149 Wis. 2d 403, 408, 417, 438 N.W.2d 589 (1989), for the proposition that once a draft or preliminary computation is circulated or used by others, it becomes a record under the Public Records Law. The Fox court held that regardless of whether the document was labeled a draft, once a government entity had begun
¶ 72. The Teachers read Fox to indicate that the focus of “personal use” in determining whether a document is a record under the third part of the definition of “record” in
¶ 73. The Teachers argue that Fox means that documents used for a government purpose are records, but that merely using the government e-mail system does not transform private communications into “records” under
¶ 74. Although both offer insights, neither Panknin nor Fox is determinative of whether the Teachers’ personal e-mails fall within the statutory phrase “for the personal use of the originator.”
¶ 75. Both the School District and the Teachers make persuasive arguments about the correct interpretation of the text of
B
¶ 76. In enacting the Public Records Law, the Legislature provided an explicit statement of its intent and the policies and purposes underlying the Public Records Law, as well as directions regarding a presumption to be used in the interpretation of the Law. In
¶ 77. The full legislative directive in
In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be 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 those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end,
ss. 19.32 to19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business.
The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.
¶ 78. Statutory interpretation strives to give “full, proper, and intended effect” to the law we are interpreting.32 The Teachers argue, and we agree, that publicly disclosing the contents of their personal e-mails is neither a proper nor an intended effect of the Public Records Law, as articulated by the Legislature‘s explicit statement of legislative intent, policy, purpose, and rule of construction.
¶ 79. The clear and explicit statement of legislative intent, policy, and purpose in the Public Records Law supports the Teachers’ argument that the content of a document must have a connection to a government function to constitute a record within the meaning of
¶ 80. The legislature has stated that the Public Records Law serves “an informed electorate” and that “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”
¶ 81. Affairs of government and official acts include the public‘s ability to evaluate the use of public resources. But there is a distinction between allowing
¶ 82. Furthermore, the legislature‘s rule of construction of the Public Records Law, a presumption of complete access, supports the Teachers’ position. According to
¶ 83. Rather, disclosure of the contents of the Teachers’ personal e-mails is antithetical to the conduct of governmental business. It is consistent with the conduct of governmental business to allow public employees occasional personal use of government computers and e-mail accounts consistent with their work duties. Flexible, common-sense workplace policies that allow occasional personal use of e-mail are in line with the mainstream of professional practice. In this case, the School District‘s Internet Use Policy and Guidelines required that “[a]ccess to e-mail on [the network] will be through the district provided account only. Other commercial e-mail services will not be allowed.”
¶ 84. Occasional personal use of District e-mail accounts thus enables public employees to take care of
¶ 85. Forbidding employees from using work e-mail accounts for any personal communications, or making such communications automatically subject to public review, would create a perverse incentive for employees to use more time-consuming means of personal communication during the workday. Stripping a public employee of his or her privacy in the contents of personal e-mails simply because he or she works for the government might hamper productivity, negatively impact employee morale, and undermine recruiting and retention of government employees.
¶ 86. Given such considerations, the School District has made the very reasonable decision to allow occasional personal use of e-mail. Excluding the content of personal e-mails from the definition of “record” under the Public Record Law comports with the “presumption of complete public access, consistent with the conduct of governmental business.” Excluding the content of the Teachers personal e-mails from “records” is the kind of common-sense, functional limit on “complete public access” expressly endorsed by the legislative statement of policy in
C
¶ 87. In addition to the legislative statement of intent and policy and directive as to construction of the Law, our interpretation of the definition of “record” in
¶ 88. Public access to government records is of long standing in Wisconsin. The Wisconsin Supreme Court recognized the right of public access to government records before any statutory enactment. Provisions relating to the public‘s right to review government records are found in
¶ 89. The lesson learned from examining the prior statute and the case law is that documents with no connection to government functions are not records within the Public Records Law.
¶ 90. Before the adoption of the present Public Records Law effective January 1, 1983, the public‘s right to review government records was governed by
¶ 91.
¶ 92. The phrase in
¶ 93. Prior to the adoption of the present law in 1983, the law was clear that papers having no relation to the function of a government office, including personal correspondence, were not open to public inspection.
¶ 94. The case law developed as follows: In 1922, the attorney general interpreted the highlighted language of
¶ 95. This 1929 Freedy interpretation was reconsidered in International Union v. Gooding, 251 Wis. 362, 369, 29 N.W.2d 730 (1947).38 In International Union, the court stated that the statutory language of
¶ 96. In other words, the International Union court concluded that the “possession” language in
¶ 97. The International Union court further declared, however, that the “possession” language of the statute was limited to those items possessed in an official capacity: “It is also clear that the words of limitation give some power to officers to dispose of what this court has called purely fugitive papers having no relation to the function of the office.”39
¶ 98. The court affirmed the International Union interpretation of “records” in State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 677–80, 137 N.W.2d 470 (1965), modified on denial of reh‘g, 28 Wis. 2d 672, 139 N.W.2d 324 (1966).40
¶ 99. The attorney general also interpreted
¶ 100. The court again affirmed the International Union interpretation of
¶ 101. The statutory history, the case law and the attorney general opinions demonstrate that whether a document is a public record depends on the nature and purpose of the document‘s contents and that the existence of a document within a public office does not in and of itself make that document a public record. As the court recognized in Panknin, not everything a government official or employee creates is a public record.43
¶ 102. In sum, the statutory history evidences that for most of a century Wisconsin‘s public records law has recognized that “fugitive papers” and personal communications with no connection to government functions are not records under the law. The case law has also emphasized that the statute, although slightly
¶ 103. The legislature is presumed to be aware of existing laws44 and the courts’ interpretations of those laws45 when it enacts a statute. The 1983 statute defining “record” uses language similar to that used in the predecessor statute and does not topple the long-established exclusion of purely personal (that is “fugitive“) documents from the meaning of the word “record.” Indeed, the 1983 statute explicitly preserves substantive common-law principles construing the right to inspect, copy, or receive copies of records.
¶ 104. The lesson learned from examining the prior statutes and the case law is that documents with purely personal content and with no connection to a government function are not records within the Public Records Law. This definition of “records” comports with the interpretations and applications of the Public Records Law by the executive branch and the explicit legislative purposes of the Public Records Law, which we now discuss.
D
¶ 105. Statutory interpretation may also be informed by the interpretations and applications of a
¶ 106. One important interpretation of the word “record” in
¶ 107. In 1983, shortly after the present statutory definition of “record” became effective, the attorney general advised the Department of Health and Human Services about releasing copies of documents received from other agencies purely for informational purposes and concerning matters not affecting the Department‘s functions. The attorney general advised the Department that documents whose content did not demonstrate “sufficient connection with the function of” the office did not qualify as public records and “therefore, would not have to be preserved or disclosed.” 72 Wis. Op. Att‘y Gen. 99 (1983).
¶ 108. In issuing this opinion, the attorney general examined
¶ 109. The attorney general opined that these three statutes, read together, demonstrate that a legal custodian has a duty under the Public Records Law to preserve those records “that have some relation to the function of his or her office.” Accordingly, the attorney general concluded that a custodian would not have to preserve or disclose copies of documents received from other agencies purely for information purposes because they “[do] not have a sufficient connection with the function of the office to qualify as public records....” 72 Wis. Op. Att‘y Gen. 99 (1983).
¶ 110. The attorney general has continued to adhere to this interpretation, recognizing that “not everything a public official or employee creates is a public record,”48 and that records are those documents “created or kept in connection with official purpose or function of the agency.”49 The attorney general consistently advises that “content, not medium or format, determines whether a document is a ‘record’ or not.”50
¶ 111. In less formal writings, such as a 2001 correspondence with a journalist from the Wisconsin State Journal, the attorney general advised that “records of a purely personal nature are exempt for the definition of ‘record’ in Section 19.32(2),” and that “personal documents are not covered by the public records law.”51
¶ 112. In a 2005 correspondence, the attorney general informed the president of the Waukesha Taxpayers League that “if the emails were about some matter that was purely personal, the emails would not be a public record.”52
¶ 113. In a 2006 correspondence with the legal counsel for the State Elections Board, the attorney general‘s office advised that “[t]he fact that... electronic communications are transmitted and stored on private email accounts is immaterial, because Wisconsin law has long recognized that the substance of the record, not its physical location or custody, determines whether the document is subject to the public records statute.”53
¶ 114. In a 2007 internal memorandum, the attorney general specifically applied this rationale to the issue of employees’ personal e-mails, as presented in this case. The memorandum concluded that “purely personal emails of public employees are not public records,” again emphasizing that “content, not medium or format, determines whether a document is a ‘record’ or not.”54
¶ 115. The attorney general‘s office is not the only executive entity advising that the contents of personal e-mails are not records under the Public Records Law. The offices of the city attorneys of Milwaukee and Madison have also advised agencies within their respective cities on matters relating to compliance with the Public Records Law and offer formal and informal opinions interpreting the Public Records Law.
¶ 116. These city attorneys have consistently advised that personal communications are not records under
¶ 117. The Milwaukee and Madison city attorneys also alert the court that federal and state courts have indicated there may be privacy concerns relating to disclosure of employees’ personal e-mail55 and that disclosure of some personal messages under some circumstances may violate the federal Stored Communication Act,
¶ 118. Applying these administrative interpretations to the instant case, we would conclude that the Teachers’ personal e-mails are neither for the informational purposes of the School District, nor are they communications between one official agency and another. They have even less connection to any government function than the informational materials received from other government agencies that the attorney general advises are not public records. Rather, these are personal messages between employees and their friends and families.
¶ 119. The content of the Teachers’ e-mails at issue has no connection to a government function, and executive branch interpretations of the Public Records Law would characterize the contents of the Teachers’ personal e-mails as not records under
The School District agrees that it was not required to retain the Teachers’ personal e-mails at issue under
E
¶ 120. Insight into the meaning of the word “record” in
¶ 121. The definition of “record” in
¶ 122. Although
¶ 123. In 2002, the Joint Legislative Council established a Special Committee on Review of the Open Records Law, which was specifically directed to “recommend changes in the law to accommodate electronic communications....” The Committee issued a report to the legislature on March 25, 2003, without recommending any change to the definition of record or any change to accommodate electronic communications.57
¶ 124. Legislative failure to act is ordinarily weak evidence of legislative intention to acquiesce in or countenance a judicial or executive branch interpretation.58 Several alternative reasons may explain the inaction. Under proper circumstances, however, inaction by the legislature may be evidence of legislative intent.59 In the instant case, the legislature‘s inaction appears probative of legislative intent to accede to the attorney general‘s interpretation of the word “record.”
¶ 125. This legislative inaction coupled with rules of statutory interpretation shows that the legislature has both contemplated the specific problem at hand and enacted numerous other amendments to the public record law. In these circumstances, legislative inaction points to acquiescence in the attorney general‘s long-standing opinion that the meaning of “record” in
¶ 126. A well-reasoned attorney general‘s opinion interpreting a statute is, according to the court‘s rules of statutory interpretation, of persuasive value.60 Furthermore, a statutory interpretation by the attorney general “is accorded even greater weight, and is regarded as presumptively correct, when the legislature later amends the statute but makes no changes in response to the attorney general‘s opinion.”61
¶ 127. In sum, the legislative history supports interpreting
F
¶ 128. This court has looked to other states for their interpretations of their open records laws to assist in the interpretation of the Wisconsin Public Records Law.62
¶ 129. The School District cites no cases from any jurisdiction taking the position that the contents of government employees’ personal e-mails should be disclosed as public records.
¶ 130. In contrast, several state courts have concluded that the contents of government employees’ personal e-mails under their respective open records acts are not public records. In these states, a connection to government business is needed to classify the document as a public record.63
¶ 131. We agree with the School District that the open record statutes differ from state to state and that the definition of “record” in other state statutes is not similar to the language of
G
¶ 132. Finally, we examine the consequences for the custodian of records of interpreting the definition of “record” in
¶ 133. No matter how the court rules in the present case, the custodian must examine and evaluate all e-mails before release to determine whether the content of the e-mail falls within an exception articulated in
¶ 134. The School District acknowledges that even if the Teachers’ personal e-mails at issue were records available to a records requester, the School District (and potentially courts, on judicial review) must examine the contents of the e-mails to determine whether to release them. Here, the School District has already acknowledged, and the circuit court order has required, that confidential information including pupil records, banking and medical information, and other personally identifiable information must be redacted from any released e-mails. Under the present statutes, the custodian must examine the contents of each e-mail to decide what material is publicly accessible while withholding protected or exempt information.
¶ 135. It is thus no more laborious a task for the record custodian to sort the contents of e-mails into personal and governmental than is already required to protect sensitive and exempted information and to perform the required balancing test.
¶ 136. As a result of today‘s decision, in addition to the other decisions the record custodian makes, he or she will have to determine whether the content of an e-mail is solely personal or has a connection to a governmental function. We recognize that it may not always be easy for the record custodian to separate the content of personal e-mails from the content of e-mails relating to school business.
¶ 137. If the content of the e-mail is solely personal, it is not a record under the Public Records Law and the e-mail cannot be released. If the content of the e-mail is personal in part and has a connection with the government function in part, then the custodian may need to redact the personal content and release the portion connected to the government function. The record custodian‘s inquiry focuses on the content of the e-mail and asks whether that content is connected to a government function. This is more of a pragmatic inquiry than an elaborate legal analysis. The e-mails at issue in this case are conceded to be entirely personal, with no connection to a governmental function.
¶ 138. Our decision today appears to add little to the administrative demands already created by Public Records Law. Indeed, in many cases it may be simpler for a record custodian to exclude wholly the content of personal e-mails, rather than to classify them as “records” under
practical considerations therefore do not persuade us to deviate from the conclusion that the determination of whether the Teachers’ personal e-mails are records is based on whether their content has a connection to a government function.
* * * *
¶ 139. In keeping with the court‘s past interpretations of the Public Records Law, we have explored various avenues to interpret the word “record” as defined in
¶ 140. All these avenues of interpretation lead to one conclusion: In determining whether a document is a record under
¶ 141. In the instant case, the contents of the Teachers’ personal e-mails have no connection to a government function and therefore are not records under
¶ 142. The contents of the personal e-mails that the Teachers created and maintained on government-owned computers pursuant to the government employer‘s permission for occasional personal use of the government e-mail account and computer are not “records” under
¶ 143. For the reasons set forth, we reverse the order of the circuit court and remand the cause to the circuit court to enjoin the School District from releasing the contents of the Teachers personal e-mails.
By the Court.—The order of the circuit court is reversed and the cause remanded.
¶ 144. ANN WALSH BRADLEY, J. (concurring). During the last several decades, technological advancements have revolutionized document storage and electronic communication. Prior to these advancements, an employee‘s personal communications, whether by note, letter, or telephone call, would not have been kept by an authority and therefore would not have been subject to disclosure under the public records law.
¶ 145. As a result of changing technology, however, many personal communications that are unrelated to the affairs of government and the official acts of officers and employees may now be “kept by an authority” because they are stored on a government server. This fact presents new challenges to record custodians who are required to determine whether particular documents are records subject to disclosure.1
¶ 146. This case presents an important issue that has far-reaching effects. It involves what I call a “bread and butter” issue of Wisconsin law. Record custodians around the state in public entities large and small are called upon day in and day out to respond to public records requests.
¶ 147. Although the various briefs submitted in this case take different positions as to the analysis and the answer, there emerges a unified theme—what is needed is clear direction to record custodians for this important everyday task.
¶ 148. Much like the various briefs submitted, the opinions authored in this case also offer different approaches. Lest there be any doubt, however, a clear rule has emerged: a custodian should not release the content of an email that is purely personal and evinces no violation of law or policy.2
I
¶ 150.
“Record” means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. “Record” includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. “Record” does not include drafts, notes, preliminary computations and like materials prepared for the originator‘s personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or bequest; and published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.
¶ 151. The Teachers’ emails are materials, kept by an authority, on which written or electromagnetic information is recorded and preserved. The emails are not “drafts, notes, preliminary computations” or “like materials prepared for the originator‘s personal use.” Further, they are not “materials which are purely the personal property of the custodian.”
¶ 152. I do not consider the declaration of policy found in
II
¶ 153. Although I agree with the dissent and with Justice Gableman‘s concurrence that the Teachers’ personal emails are records, I do not join them. I determine that the dissent fails to acknowledge the important policy reasons supporting nondisclosure of the content of personal emails. I do not join Justice Gableman‘s concurrence because it embarks upon addressing a statute that is not implicated in this case. Further, in the wake of the discussion, it leaves confusion rather than clarity in the law because it misconstrues the lead opinion.
¶ 154. The dissent concludes that there is a strong public interest in disclosure of the content of all of the Teachers’ emails, even those that are personal and evince no violation of law or policy. Dissent, ¶ 224. “Given the significant role that teachers play in our society,” the dissent explains, “the public has a very strong interest in all of their activities in the workplace.” Dissent, ¶ 209.
¶ 155. The trouble with this analysis, as I see it, is that the public interest in monitoring the content of the Teachers’ personal emails cannot be as absolute as the
¶ 156. If the dissent is right, then a government employee could subvert the purpose of the public records law in seconds and with several strokes on a keyboard simply by logging onto a free personal email account. I conclude that the policy underlying the public records law is not so ephemeral and its mandates are not so easily circumvented.
¶ 157. Likewise, I am concerned that Justice Gableman‘s concurrence adds confusion rather than clarity to the law. This case was initiated by record subjects—not record requestors.
¶ 158. Five teachers of the Wisconsin Rapids School District who were the subjects of a records request commenced this action. The records requestor, Don Bubolz, did not initiate this or any other action. Nevertheless, the concurrence reaches out and addresses the statute governing actions by record requestors,
¶ 159. I am hesitant to respond to the concurrence‘s discussion of
¶ 160. The concurrence incorrectly concludes that the approach of the lead opinion would give record custodians under
¶ 161. Regardless of whether the approach of the lead opinion is taken (the content of a purely personal email is not a record) or the approach of the concurrences is taken (the content of a purely personal email is a record), it is really the same question and yields the same result. The custodian must either “fill the request” or notify the requestor of the denial and “the reasons therefor.”
¶ 162. Further, under either approach, if the decision of the custodian is to withhold requested documents, that decision can be challenged under
III
¶ 163. Before releasing a record, the record custodian must apply a balancing test, which weighs the public interest in disclosure against the public interest in nondisclosure. This case requires the court to provide direction to custodians on how to apply the balancing test to the content of an email that is purely personal and evinces no violation of law or policy.
¶ 164. The Teachers have stated that they have no objection to the disclosure of statistical information about their email use or to the disclosure of their personal emails with the content fully redacted. See lead op., ¶ 28. This information would allow the requestor to determine how often the Teachers sent and received personal emails from their work accounts. It is the disclosure of the content of personal emails that is the basis of the Teachers’ objection.
¶ 165. The public policy underlying the public records law is set forth in the statute and informs the application of the balancing test. “[I]t is declared to be the public policy of the state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”
¶ 166. When a record provides “information regarding the affairs of government and the official acts of [] officers and employees,” including information that would permit the public to evaluate the use or misuse of public resources, access to that record is presumed. Denial of public access to such records is “generally contrary to the public interest.”
¶ 167. Disclosure of the contents of personal emails, however, does not keep the electorate informed about “official acts” and “the affairs of government” when the contents of the emails evince no violation of law or policy. Disclosure of the contents of such emails would not further the public policy declaration found in
¶ 168. I agree with Justice Gableman that there is little public interest in disclosure of the content of emails when that content is purely personal and evinces no violation of law or policy. See Justice Gableman‘s concurrence, ¶ 182. I also agree with Justice Gableman that there is a public interest served by nondisclosure. Unlike Justice Gableman, however, I conclude that the balance always weighs in favor of nondisclosure.
¶ 169. The public has an interest in hiring and retaining skilled employees. As the lead opinion explains, “[s]tripping a public employee of his or her privacy in the contents of personal emails simply because he or she works for the government might . . .
¶ 170. The public also has an interest in government employee productivity. Like private employees, public employees often have to address personal or family issues that arise while they are at work, and email is an effective means by which employees can quickly address these issues. See lead op., ¶¶ 84-85. If public employees believe that their personal email communications will be subject to disclosure upon a records request, public employees will likely use other less efficient means of communication, reducing their productivity.
¶ 171. In the years since the advent of email and the resulting changes in the way that we communicate, many jurisdictions have been asked to address whether personal emails should be disclosed in response to a records request. Every single one of the jurisdictions has concluded that the policies underlying public records laws do not support the disclosure of purely personal emails that evince no violation of law or policy. See lead op., ¶ 130 n.63 (collecting cases).
¶ 172. For the reasons set forth above, I conclude that whenever the content of an email is purely personal and evinces no violation of law or policy, the public interest in nondisclosure will always outweigh the public interest in disclosure. Therefore, once the custodian determines that certain emails are purely personal and evince no violation of law or policy, the custodian does not undertake a balancing of each request. Like the lead opinion and Justice Gableman‘s concurrence, I determine that the content of such emails should not be released. Accordingly, I respectfully concur.
ers’ personal e-mails not reflecting a violation of law or policy should not be released.4 I write further to clarify the procedure that governs review of these kinds of record requests under our existing case law.
I
¶ 174. Requesters seeking documents under Wisconsin‘s open records laws5 are entitled only to materials that meet the statutory definition of a “record” in
requester has a right to inspect any record.“) (emphasis added). Thus, when faced with an open records request, the first step is to determine which requested items are records. See Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶¶ 23-31, 300 Wis. 2d 290, 731 N.W.2d 240. Just because an item is a record, however, does not automatically guarantee release. A record need not be disclosed if it falls under one of the statutory or common law exceptions to disclosure. Linzmeyer v. Forcey, 2002 WI 84, ¶ 11, 254 Wis. 2d 306, 646 N.W.2d 811. A record may also be withheld from the record requester if the public interest in nondisclosure outweighs the public interest in disclosure; this is known as the balancing test. See id., ¶¶ 42-43.
¶ 175. I agree with the dissent and Justice Bradley that the e-mails at issue in this case are “records” as defined by
¶ 176. No party alleges that a statutory or common law exception to release of the records applies. I therefore move to the balancing test. Under the balancing test, we weigh the public interest in disclosure against the public interest in nondisclosure. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, ¶ 55, 319 Wis. 2d 439, 768 N.W.2d 700. The balancing test must be published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.
¶ 177. It is important to remember the purpose and public policy underlying the open records law. The legislature does not leave us in the dark on this front.
In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be 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 those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied. (Emphasis added.)
¶ 178. This statute tells us that the open records law seeks to make widely available the records relating to “the affairs of government and the official acts of those officers and employees who represent them.” While the legislature mandates a presumption of complete public access, the presumption is confined by the addendum, “consistent with the conduct of governmental business.” Thus, the open records law declares that the public‘s interest inheres in government business, affairs, and official acts.
¶ 180. As I see it, the legislature has made clear that the public has no interest in the disclosure of records that are not reasonably related to the conduct of government affairs. Or put positively, the public interest extends only to records that reasonably bear upon public affairs. Accordingly, the public would normally have no interest in records relating to purely personal matters. This is not to say the public never has an interest in records relating only to personal matters. Such records are relevant to the conduct of government affairs when personal conduct violates state or federal law, for example, or when the records evince a violation of the public employer‘s internal policy. This accords with the purpose of sunshine laws such as the open records law—to ensure that government is behaving itself and spending our tax dollars legally and wisely.
¶ 181. On the other side, the public does have at least some interest in the nondisclosure of purely personal records. The public has an interest in providing some measure of privacy to public employees who make reasonable and lawful personal use of government resources. It is in the public‘s interest that public employees be permitted to efficiently and privately conduct limited personal business at work, just as many
¶ 182. The purpose of the open records law is to open a window into the affairs of government, not to open a window into the private lives of government employees. Therefore, where e-mails, either individually or cumulatively,10 are of a purely personal nature and reflect no violation of law or policy, the public has no interest in such e-mails, and the public interest in nondisclosure will always outweigh the public interest in disclosure. Thus, the public has no interest in such things as a teacher‘s e-mail reflecting after-work plans, setting up a doctor‘s appointment, or securing baby-sitting for her children. If the e-mails reflected such activities as a teacher‘s romantic involvement with a student, campaigning for a politician using government resources, or abuse of the e-mail system in violation of the district policy, the public interest would undoubtedly be strong. Such a determination can only be made by reviewing each e-mail.
¶ 183. Accordingly, I agree with the lead opinion and Justice Bradley that “a custodian should not release
II
¶ 184. This case is the first time this court has addressed the applicability of the open records law to personal e-mails. As such, I wish to further clarify the procedure that governs review of these kinds of record requests as established by our existing case law.
¶ 185. Our case law is clear that if the content of the records is unknown, and the record requester challenges the custodian‘s withholding of records, the circuit court conducts an in camera review. In State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965), this court explained as follows:
The duty of first determining that the harmful effect upon the public interest of permitting inspection outweighs the benefit to be gained by granting inspection rests upon the public officer having custody of the record or document sought to be inspected. If he determines that permitting inspection would result in harm to the public interest which outweighs any benefit that would result from granting inspection, it is incumbent upon him to refuse the demand for inspection and state specifically the reasons for this refusal. If the person seeking inspection thereafter institutes court action to compel inspection and the officer depends upon the grounds stated in his refusal, the proper procedure is for the trial judge to examine in camera the record or document sought to be inspected. Upon making such in camera examination, the trial judge should then make his determination of whether or not the harm likely to result to the public interest by permitting the inspection outweighs the benefit to be gained by granting inspection.
Id. at 682 (footnote omitted). We affirmed this proce
Youmans shows that the in camera inspection assists the court in determining whether the harm to the public interest by allowing inspection outweighs the public interest in inspection. After reviewing the records in camera, the court may decide that only certain records or portions of a particular record should be released.
Id. at 531 (footnote omitted).
¶ 186. In this case, we similarly do not know the content of any of the e-mails. Under our cases and under
nature and, individually and cumulatively, whether they contain evidence of any violation of law or policy. If they are personal and do not contain evidence of any violation of law or policy, the balancing test always weighs in favor of nondisclosure. But this review process is important; without it, the people will be deprived of the transparency the legislature mandated in the public records law.12
¶ 187. For the foregoing reasons, I respectfully concur.
¶ 188. PATIENCE DRAKE ROGGENSACK, J. (dissenting). The lead opinion prevents the public from viewing the workplace activities of Wisconsin Rapids School District (School District) employees (here, teachers) by creating an exception to the definition of “record” in the Public Records Law,
I. BACKGROUND
¶ 189. Don Bubolz (Bubolz), a citizen of the state of Wisconsin, sent the School District a public records request3 for the e-mails of five named teachers in the School District. Bubolz requested the “e-mails from March 1, 2007 through April 13, 2007 in their entirety . . . from the computers [the teachers used] during their school work day.”4
¶ 190. The School District notified the teachers that it intended to comply with Bubolz‘s request. The
¶ 191. The circuit court ordered the release of all of the requested e-mails, including those e-mails that the teachers characterized as “personal.” The circuit court concluded that all of the e-mails were “records” within the definition of
¶ 192. The teachers appealed.
¶ 193. In his appellate brief, Bubolz, appearing pro se as the Intervenor-Respondent, explained that he requested the records because he wished to determine the extent and the quality of use of government computers and government e-mail services by the teachers
¶ 194. The School District has a written policy, “365.1 Network and Internet Acceptable Use Policy,” for use of its e-mail accounts. That policy states in relevant part:
Users of the WRDN[, Wisconsin Rapids District Network,] should not assume that information stored and/or transmitted is confidential or secure.
. . .
All district assigned e-mail accounts are owned by the district and, therefore, are not private. Messages received by the e-mail system are retained on the system until deleted by the recipient. . . .
Occasional personal use of e-mail is permitted, but limited to times which do not interfere with the user‘s responsibilities.12
[A]ccess to the WRDN and the Internet has been developed to support the district‘s educational responsibilities and mission. . . .
By signing below I acknowledge that e-mail messages and Internet usage are not private and recognize that all employee‘s activities on the WRDN may be monitored.14
¶ 195. The lead opinion asserts that “[n]o allegation of improper use is at issue here.”15 The lead opinion further asserts: “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.”16 Similarly, Justice Bradley‘s concurring opinion asserts that the parties concede that the e-mails at issue in this case are purely “personal and evinces no violation of law or policy.”17 However, neither Bubolz, the Intervenor-Respondent who requested these records, nor the School District agrees with the lead
¶ 196. First, Bubolz asserts that “this entire case is an attempt by the [Wisconsin Education] Association [Council and counsel for the teachers,] to narrowly define Wisconsin‘s [Public] Records Law to allow public employees on their taxpayer paid work time to conduct personal business without any monitoring or accountability to the public or taxpayers.”19 Bubolz also states: “To try to distinguish some duties as personal and not official would relegate [teachers] to a ‘punch clock’ status and make accountability in schools impossible because anytime they would do something inappropriate, they would simply state they were acting on personal time and outside the realm of their official duties.”20 Finally, Bubolz contends that “whenever the teacher is on taxpayer paid time during their paid workday, they are performing official duties.”21
¶ 197. Turning to the School District‘s position, in its answer to the teachers’ amended complaint, the
¶ 198. We may accept parties’ stipulated facts. See Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 4, 309 Wis. 2d 541, 749 N.W.2d 581. However, as we just explained, the parties in this case have not stipulated, nor do they agree, to the fact that the e-mails do not relate to governmental affairs.
¶ 199. As stated, the lead opinion and Justice Bradley‘s concurring opinion repeatedly assert that there is nothing in these e-mails that relates in any way to the teachers’ employment.25 This assertion is made in the absence of an agreement by all the parties and
II. DISCUSSION
A. Standard of Review
¶ 200. This case presents questions of statutory interpretation and application. We interpret and apply statutes independently of the previous court decision, but benefitting by its analysis. Milwaukee Journal Sentinel v. Wis. Dep‘t of Admin., 2009 WI 79, ¶ 14, 319 Wis. 2d 439, 768 N.W.2d 700 (citing Blunt v. Medtronic, Inc., 2009 WI 16, ¶ 13, 315 Wis. 2d 612, 760 N.W.2d 396). Applying the balancing test prior to the disclosure of public records is also a question of law for our independent review; however, we benefit from the circuit court‘s discussion of the balance it conducted. Id. (citing Wis. Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, 199 Wis. 2d 768, 784, 546 N.W.2d 143 (1996)).
B. General Principles of Statutory Interpretation
¶ 201. This case requires us to interpret and apply Wisconsin‘s Public Records Law statutes. “Statutory interpretation begins ‘with the language of the statute.‘” Cnty. of Dane v. LIRC, 2009 WI 9, ¶ 21, 315 Wis. 2d 293, 759 N.W.2d 571 (quoting State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110). Statutory language “is given its common, ordinary, and accepted meaning.”
¶ 202. Statutes are not interpreted in a vacuum. Rather, we interpret them in the context in which the legislature placed them. Spiegelberg v. State, 2006 WI 75, ¶ 17, 291 Wis. 2d 601, 717 N.W.2d 641. Furthermore, when the legislature has set out the purpose of a statute, we interpret the statute so as to fulfill its stated purpose. Cnty. of Dane, 315 Wis. 2d 293, ¶ 34 (citing Johnson v. Wis. Lumber & Supply Co., 203 Wis. 304, 310, 234 N.W. 506 (1931)).
C. Wisconsin Stat. § 19.32(2)
¶ 203. The lead opinion turns on its creation of an exception to the Public Records Law‘s definition of “record.” “Record” is defined in
“Record” means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. “Record” includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. “Record” does not include drafts, notes, preliminary computations and like materials prepared for the
originator‘s personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or bequest; and published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.
(Emphasis added.)
¶ 204. The lead opinion seems to agree that e-mails are “records” within the definition of
1. Plain meaning of Wis. Stat. § 19.32(2)
¶ 205.
¶ 206. Subsection (2) of
¶ 207. Furthermore, we interpret statutes in the context in which the legislature has placed them. Richards, 309 Wis. 2d 541, ¶ 20. Placed in context, the definition of “record” set out in
¶ 208. In addition, when the legislature states the purpose that it expects legislation to accomplish, we interpret the affected statutes to “best promote [that] statutory purpose[].” Cnty. of Dane, 315 Wis. 2d 293, ¶ 34. In establishing Wisconsin‘s Public Records Law, the legislature unambiguously stated its purpose. See
¶ 209. As we have explained, the “statement of public policy in
¶ 210. In Fox v. Bock, 149 Wis. 2d 403, 438 N.W.2d 589 (1989), we examined a claimed exception from record disclosure. We addressed a claim that a report of a study prepared by a third party was not a “record” within the meaning of the Public Records Law. Id. at 405. In concluding that the report was a record, we reasoned that the “term ‘record’ is broadly defined in
¶ 211. I conclude that the lead opinion‘s creation of a broad exception to the Public Records Law—the exclusion of e-mails that government employees characterize as “personal”29—contravenes the plain meaning of “record” as defined by the legislature.
2. Open and accountable government
¶ 212. Wisconsin has a long history of holding public employees accountable through providing complete public access to records that will assist in the public‘s review. Zellner, 300 Wis. 2d 290, ¶ 49. As stated, the legislative purpose of the Public Records Law is set out in
In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be 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 those officers and employees who represent
them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.
¶ 213. The legislature‘s statement that
¶ 214. There is nothing ambiguous in the legislative directive of “complete public access.” All e-mails in the School District‘s e-mail account should be released, unless there is an exception in
¶ 215. Any exception to the general presumption of complete disclosure must be narrowly construed. Zellner, 300 Wis. 2d 290, ¶ 31 (“[S]tatutory exceptions ‘should be recognized for what they are, instances in derogation of the general legislative intent, and should, therefore, be narrowly construed.‘” (quoting Fox, 149 Wis. 2d at 411)); Hathaway, 116 Wis. 2d at 397. It is “contrary to general well established principles of freedom-of-information statutes to hold that, by implication only, any type of record can be held from public inspection.” Hathaway, 116 Wis. 2d at 397 (emphasis added).
¶ 217. And finally, why does the Public Records Law state that there is a presumption of complete public access? It does so to enable the public to see for itself what is going on in government work places. The lead opinion shuts down this public access whenever public employees characterize their emails as “personal.” It is not possible to accord public oversight of government employees’ activities when those same government employees decide what the public is permitted to see.
3. Content-based exception
¶ 218. Throughout the lead opinion, it repeats that whether an e-mail is a record within the meaning of the Public Records Law depends on the content of the
¶ 219. Some courts in other jurisdictions have applied a content-based analysis to freedom-of-information types of requests, but they have made a decision about whether the material should be released only after an in camera review of the emails under consideration. See, e.g., Associated Press v. Canterbury, 688 S.E.2d 317, 322-23 (W. Va. 2009) (concluding that the trial court properly ordered the e-mails at issue produced for an in camera review of their content).
¶ 220. The lead opinion also supports its content-based exception by stating that those “personal e-mails include such messages as an e-mail from a teacher to her spouse about child care responsibilities and an e-mail from a friend to a teacher regarding social plans.”33 The lead opinion errs. No justice has seen any of the e-mails at issue; they are not in the record. Therefore, there is no way any member of this court can provide examples of what the emails say. Notwithstanding this lack of knowledge, a majority of this court relates what the emails say.
¶ 221. Here, Bubolz, the records requester and a party to this action,34 alleges that the teachers are attempting to preclude him from reviewing the extent and quality of use of School District computers and
¶ 222. While one could assert that those types of e-mails are personal in nature38 because the teachers are doing things outside of their jobs duties, one could also assert that it is not proper for teachers to be campaigning for school board candidates or members using School District e-mail accounts and computers during the workday.39 However, there is no way of knowing what is going on here because the lead opinion
D. Balance
¶ 223. Since I have concluded that e-mails created in School District e-mail accounts on School District computers during the workday do not fall within an exception to the statutory definition of “record” contained in
¶ 224. This balancing involves weighing “the public interest in disclosure against the public interest in non-disclosure.” Id., ¶ 55. In balancing these interests, there generally are no “‘blanket exceptions from release.‘” Id., ¶ 56 (quoting Linzmeyer, 254 Wis. 2d 306, ¶ 10). Furthermore, there is a strong legislatively established presumption in favor of disclosure. Hempel v. City of Baraboo, 2005 WI 120, ¶ 63, 284 Wis. 2d 162, 699 N.W.2d 551. Only in an “exceptional case” will nondisclosure be appropriate. Id. This presumption of disclosure is one of the strongest in the Wisconsin statutes. Zellner, 300 Wis. 2d 290, ¶ 49. To overcome this presumption, the person opposing disclosure has the burden to show a compelling public interest in nondisclosure. Local 2489, AFSCME, AFL-CIO v. Rock Cnty., 2004 WI App 210, ¶ 27, 277 Wis. 2d 208, 689 N.W.2d 644.
¶ 226. I am not persuaded. First, the teachers have been informed by the School District‘s policy 365.1 on network and internet usage that they “should not assume that information stored and/or transmitted is confidential or secure.”41 Second, each teacher was required to sign the following acknowledgement: “By signing below I acknowledge that e-mail messages and Internet usage are not private and recognize that all employee‘s activities on the WRDN may be monitored.” Therefore, there can be no expectation of privacy in these emails. Neither of the cases cited by the teachers involved a similar policy and acknowledgement.
¶ 227. Furthermore, even though individual privacy concerns may rise to the level of a public interest, the teachers have made no such showing here. As the court of appeals has explained, “[w]hen individuals become public employees, they necessarily give up
¶ 228. Accordingly, I conclude that the teachers have identified no public interest that will be served by the blanket exception from the Public Records Law they assert herein, given that the circuit court ordered the School District, prior to release, to redact from the e-mails any home addresses, telephone numbers, home e-mail addresses, social security numbers, medical information, bank account numbers and pupil record information.
¶ 229. Furthermore, the teachers’ privacy concern, if it were to rise to the level of a public interest, is balanced against the strong public interest in disclosure of the activities of public employees in the workplace. See Zellner, 300 Wis. 2d 290, ¶ 49. It is also considered with regard to our recent affirmation that the Public Records Law is generally not amenable to blanket exceptions, Milwaukee Journal Sentinel, 319 Wis. 2d 439, ¶ 56, 768 N.W.2d 700, such as the lead opinion has attempted to create here for all e-mails it labels “personal.” Therefore, even if I were to presume that the content of the e-mails do not involve work-related matters, I agree with the circuit court that the teachers have not overcome the statutory presumption of full disclosure and complete public access and, therefore, the e-mails should be provided pursuant to Bubolz‘s request.42 Accordingly, I would affirm the circuit court order releasing the e-mails.
¶ 230. The lead opinion prevents the public from viewing the workplace activities of School District teachers by creating an exception to the definition of “record” in the Public Records Law,
¶ 231. I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins this dissent.
Notes
Justice Bradley also concludes that, “once the custodian determines that certain e[-]mails are purely personal and evince
“Record” means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. “Record” includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. “Record” does not include drafts, notes, preliminary computations and like materials prepared for the originator‘s personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or bequest; and See Milwaukee Journal Sentinel v. Wis. Dep‘t of Admin., 2009 WI 79, ¶¶ 54-55, 319 Wis. 2d 439, 768 N.W.2d 700 (explaining that, in the absence of a statutory or common law exception, the presumption favoring release may be overcome only when, in performing the balancing test, the public interest in non-disclosure outweighs the public interest in disclosure).
But the complicated nature of this case (represented by four different writings and no majority opinion) means that clarity in the actual operation of the principles we announce is critical. My efforts here are aimed at making sure the public knows that under our holding, it still can seek judicial review of withheld e-mails that the custodian determines are purely personal.
Though accusing me of “misconstruing” the lead opinion, and leaving “confusion” in my critique of the lead opinion‘s approach (see infra note 12), Justice Bradley appears to agree with my analysis regarding whether the e-mails here are records, the application of the balancing test, and the rights of record requesters under
The lead opinion concludes that where the content of e-mails is purely personal and does not evince a violation of law or policy, such e-mails are not records under
Moreover, under the public records statute, elected officials are the legal custodians of their own records and the records of their office.
Thankfully, four members of this court conclude that such e-mails are public records. As such, the lead opinion‘s approach is not the law. 365.1 Network and Internet Acceptable Use Policy, 300-104, 300-111.
The School District argues that it had the right to release the records without giving the Teachers prior notice but also had discretion to provide notice to the Teachers of its intent to release the records.
The District also contends that the statute stating that an individual is “entitled” to judicial review only when a request for records is made that fits within the statute‘s three circumstances does not preclude that person‘s ability to seek judicial review under other circumstances. The School District asserts that this approach harmonizes
In Woznicki, the court held that “an individual whose privacy or reputational interests are implicated by the potential release of his or her records has a right to have the circuit court review the . . . decision to release the records . . . .” Woznicki, 202 Wis. 2d at 193.
Forfeiture is the failure to make the timely assertion of a right. Although cases sometimes use the words “forfeiture” and “waiver” interchangeably, the two words embody very different legal concepts. Waiver is the intentional relinquishment or abandonment of a known right. State v. Ndina, 2009 WI 21, ¶¶ 29-30, 315 Wis. 2d 653, 761 N.W.2d 612. The present case raises the question of forfeiture, not waiver.
Forfeiture is a rule of judicial administration. It is a fundamental principle of appellate review that issues must be preserved at the circuit court to be raised on appeal as a matter of right. If the issue is not preserved, an appellate court may consider the issue forfeited. The forfeiture rule gives the parties and the circuit court notice of the issue and a fair opportunity
to address it; encourages attorneys to diligently prepare for and conduct trials; and prevents attorneys from “sandbagging” opposing counsel by failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal. Mikrut, 273 Wis. 2d 76, ¶ 15 (citing State v. Huebner, 2000 WI 59, ¶ 10, 235 Wis. 2d 486, 611 N.W.2d 727). Id.The three justices who participate in the lead opinion and Justice Bradley in her concurring opinion rely on an asserted knowledge of the emails’ content.Prior to the enactment of the first general public records legislation by ch. 178, Laws of 1917, the public‘s right of access to government records was governed mainly by the common law. These general principles remain unchanged.
Section 19.35(1)(a), Stats. states that “[s]ubstantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect.”
365.1 Network and Internet Acceptable Use Policy, 300-104.(a) ‘Public records’ means all books, papers, maps, photographs, films, recordings, or other documentary materials or any copy thereof, regardless of physical form or characteristics, made, or received by any agency of the state or its officers or employes [sic] in connection with the transaction of public business and retained by that agency or its successor as evidence of its activities or functions because of the information contained therein; except the records and correspondence of any member of the state legislature (emphasis added).