E-Mail Is Public Record, Districts Learn

By Jeff Archer — February 26, 2003 5 min read

For many local school boards, the Internet has become an essential tool for tapping the concerns of constituents. Parents who would otherwise hesitate to call or write a letter often show little inhibition in firing off e-mails to their districts’ top leaders.

But this aspect of e-governance has raised a thorny issue in Wisconsin, where some school board members have been surprised to learn that electronic mail they receive from the public is covered by the state’s open-records laws. That means not only keeping the messages for seven years, but also making them available for public inspection.

“We really weren’t aware as a school board that we should be saving these e-mails,” Karen Bowen, the president of the school board in Oshkosh, said recently.

Legal experts say the rules governing open records in most states would treat such e-mails similarly. The question seldom comes up, however, in part because it is rare for anyone to ask for them.

The issue came to light in Wisconsin last fall, after a newspaper in Oshkosh sought access to hundreds of e-mails that parents had sent to members of the 10,500-student district’s school board over a five- month period.

The request by the Oshkosh Northwestern, and the resulting article that excerpted some of the messages, proved to be a potent force for consciousness-raising in the state. Some Wisconsin school systems have since instituted new procedures for archiving e-mails sent to board members. And some local officials claim parents now are wary of communicating with them by the Internet.

Meanwhile, the episode has fueled debate within the Wisconsin Association of School Boards over whether to lobby for changes in the state rules on public records. Ken Cole, the group’s executive director, guesses that until recently, about half his members didn’t realize how the law applied to electronic correspondence from parents.

“All of our open-records laws were written and passed before e-mail existed,” he pointed out.

Candid Comments

At first, even the staff at the Northwestern wasn’t entirely sure it had the legal grounds to demand the e-mails, said Stewart Rieckman, the newspaper’s executive editor. The journalists got the idea after a school board member said he’d been flooded with messages regarding proposals to consolidate schools and change their attendance zones.

“We decided: ‘Gee, we’d like to look at that,’” Mr. Rieckman said.

Unsure what to do, the school board initially hesitated, until the paper took the issue to then-Attorney General James Doyle. While visiting the Northwestern‘s editorial board in October during what turned out to be a successful run for governor, Mr. Doyle said there was no doubt that e-mails sent to public officials by constituents fall under Wisconsin’s open-records laws.

Once given the requested material, the Oshkosh paper published an article in November that quoted by name from several parents’ e-mail messages. They cited a litany of concerns about the board’s plans, including issues of transportation, safety, and home values.

One parent fumed: “If this goes through, you all should resign, because it shows you have no character whatsoever.”

Mr. Rieckman said it was important to know who was trying to sway the school board. “Open and frank discussion on issues is what makes democracy work, and when you send an e-mail, you’re part of that discussion,” the Northwestern editor said. “You should assume that you can’t do that without being identifiable.”

Specialists in open- records rules agree. Written correspondence to government officials has long been considered a matter of public record. To treat e-mail differently, the thinking goes, would invite officials to retreat to cyberspace as a way to avoid the public eye.

“I think people have to get used to the idea that whatever they communicate electronically is in a lot of ways the same as a written letter, and so could be scrutinized by whomever,” said Naomi Gittins, a staff lawyer with the National School Boards Association, based in Alexandria, Va.

That realization, though, requires some adjustment for district leaders. Board members in Oshkosh and other districts in Wisconsin have acknowledged that in the past they’ve deleted some constituents’ e-mails without thinking—especially notes received on their personal Internet accounts.

Claims of a Chill

As a remedy, some districts now have board members send copies of their incoming and outgoing e-mails to specific addresses on the school systems’ computer networks.

Technical issues aside, Ms. Bowen of the Oshkosh school board worries about a chilling effect. Although the Northwestern says that it received no complaints from the parents whose e-mails it printed, Ms. Bowen says the flow of messages she gets from constituents has been down to a trickle since the article.

Although parents may not realize it, there still are grounds for keeping certain sensitive messages out of the public domain. What matters, lawyers say, is the extent to which their content deals with official business. The Oshkosh newspaper, for example, had to specify that it wanted messages only about certain policy issues. E-mails from parents complaining about their children’s grades, for example, wouldn’t have fit the criteria.

“If people assume that everything they put in an e-mail is open to the public, then sure, that will chill people,” said Robert Dreps, a Madison, Wis., lawyer specializing in open-records laws. “It is the obligation of the elected and employed education officials to educate the public that that’s not the case.”

Some school board leaders have had other ideas. At their annual meeting last month, members of the Wisconsin Association of School Boards considered a resolution to push for legislation that would exempt the e-mails of school board members from the state’s open-records laws, essentially treating such messages like phone calls. But the group shot down the idea by a vote of 326-41.

The body also rejected a compromise put forth by Ms. Bowen to call for exempting only e-mails from parents, while leaving messages between public officials fair game for public access.

“The school board members in Wisconsin were more concerned about the perception of keeping things outside the public view than they were concerned about making the administration and governance of schools more effective,” said Mr. Cole, the association’s executive director. “And I guess I can’t blame them.”

Mr. Cole, who supported the idea of changing the state law, doubts that the matter is settled. The Northwestern has gotten calls from other papers in the state asking how to make similar requests for e-mails.

Said Mr. Cole: “I don’t think this issue is lost and gone forever.”

Coverage of technology is supported in part by the William and Flora Hewlett Foundation.

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