Published Online: August 13, 2010
Published in Print: August 11, 2010, as Wisconsin Court Allows Teachers' E-Mails to Stay Private

Wisconsin Grants Privacy to Teacher E-Mails

Messages Sent on the Job Exempted From State's Public-Records Law

A ruling by Wisconsin’s highest court on teachers’ personal e-mails on school computers marks the latest in a series of decisions about the privacy of government employees’ e-mail use.

The Wisconsin Supreme Court ruled last month that such e-mails are not public records under state law and need not be disclosed to those who request records.

The decision echoes the conclusion of similar cases in Arizona, Arkansas, Colorado, Idaho, Michigan, Tennessee, and West Virginia.

In those states, courts have ruled that under their respective state open-records laws, government employees’ personal e-mails are not part of the public record even if they are sent from public computers during work hours, unless there is a connection to government business.

“There is a distinction between allowing public oversight of employees’ use of public resources and invoking the Public Records Law to invade the private affairs of public employees by categorically revealing the contents of employees’ personal e-mails,” Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court wrote in the lead opinion.

The state teachers’ union, which had fought the release of the e-mails, praised the decision.

“It’s sound public policy, and we feel it really offers clarity around the public-records law,” said Christina Brey, a spokeswoman for the Wisconsin Education Association Council.

Michael D. Simpson, the assistant general counsel for the 3.2-million member National Education Association, also supported the decision.

“You have to look at the purpose of the [public-records] statutes, which are to create transparency and accountability for how the government functions,” he said. “There’s no public interest to be served by allowing the general public to read and review private e-mails.”

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Such laws, however, vary by state, and the same case could have had a different outcome elsewhere, said Mr. Simpson.

For instance, in Massachusetts in 2008, a lower court ruled that e-mails sent on government computers are considered part of the public record, resulting in the release of messages allegedly suggesting an inappropriate relationship between a principal and a teacher.

“It was a very important warning to all public employees to exercise extraordinary caution and not put something in an e-mail unless they’re prepared to see it in public,” said Glenn Koocher, the executive director of the Massachusetts Association of School Committees.

'Fishing Expedition'

The Wisconsin case grew out of a public-records request by a local resident for all e-mails sent and received on school computers by five teachers in the Wisconsin Rapids school district for about a six-week period in 2007. The district permits teachers to use school computers for personal e-mail.

Don Bubolz acknowledged in court proceedings that he was on a “fishing expedition” to examine whether teachers were using e-mail inappropriately when he requested the information.

The teachers did not object to disclosing work-related e-mails, but they sought an injunction to bar the district from disclosing their personal messages. A state trial court held that the teachers’ personal e-mails were public records.

But in the July 16 rulingRequires Adobe Acrobat Reader in Schill v. Wisconsin Rapids School District, the state’s highest court voted 5-2 to reverse that decision. The majority issued three separate opinions that offered slight distinctions in reasoning.

In a plurality opinion joined by two other justices, Chief Justice Abrahamson noted that the state’s public-records law was adopted in 1983, long before e-mail was in widespread use in the workplace.

But most other states’ courts that have considered the issue have also ruled that personal e-mail messages of government employees should be exempt from public-records laws.

Critics Question Ruling

Justice Patience Drake Roggensack, in a dissent joined by one other justice, said the exception for personal e-mails “prevents the public from discovering what public employees are doing during the workday, in the workplace, using equipment purchased with public funds. In so doing, the court contravenes Wisconsin’s long history of transparency in and public access to actions of government employees.”

Mr. Bubolz said he thought the ruling would limit the public’s ability to know whether teachers are wasting time during the workday sending personal e-mail messages.

“I know it’s going to make it difficult to come up with more information in the future,” he said of the ruling.”

Private e-mails could still be made public if they are evidence in a disciplinary hearing or to investigate the misuse of government resources, the chief justice said. The opinion does allow for the public to get some information about personal e-mails, such as how many were sent and at what time.

Still, members of the public will not be able to find out whether public employees are engaging in illegal activity such as campaigning while at work, said Bob Dreps, a lawyer representing news-media organizations that had argued the e-mails should be made public.

The Associated Press, the Wisconsin Freedom of Information Council, the Wisconsin Broadcasters Association, the Wisconsin Newspapers Association, the Milwaukee Journal Sentinel, and Journal Broadcast Group had filed a brief calling for the e-mails to be released.

Mr. Dreps said the decision points to the need for the legislature to update the public-records law to address e-mail and other records not contemplated 30 years ago.

Vol. 29, Issue 37, Page 18

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