Demand for Emails of Wisconsin Professor Raises Legal Questions

By March 25, 2011

FIRE has received inquiries today regarding the Republican Party of Wisconsin’s request, using the state’s Open Records law, that the University of Wisconsin-Madison (UWM) turn over emails of UWM history professor William Cronon. This turn comes shortly following Cronon’s March 15 entry on his blog Scholar As Citizen, in which he discussed recently passed legislation in Wisconsin that reduces the powers of public sector employees. On March 17, UWM Senior University Legal Counsel John C. Dowling received the following email, reprinted on Scholar as Citizen:

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From: Stephan Thompson [...]
Sent: Thursday, March 17, 2011 2:37 PM
To: Dowling, John
Subject: Open Records Request

Dear Mr. Dowling,

Under Wisconsin open records law, we are requesting copies of the following items:

Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as "anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc."

Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.

Sincerely,

Stephan Thompson

Republican Party of Wisconsin

[...]

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As both Cronon and the GOP of Wisconsin point out, Thompson’s request is legal, and the requesting party need not provide a reason for the inquiry. As Cronon himself writes,

Under Wisconsin’s Open Records Law, anyone has the right to request access to the state’s public records, and can do so without either identifying themselves or stating the reasons for their interest in those records.

What isn’t quite so clear is whether Cronon is required to turn over "all emails into and out of" his university account.

Last year, the Supreme Court of Wisconsin held that "the contents of employees’ personal e-mails are not a part of government business," and that "[p]ersonal e-mails are therefore not always records within the meaning of Wis. Stat. 19.32(2) simply because they are sent and received on government e-mail and computer systems." Schill v. Wisconsin Rapids School District, 327 Wis. 2d 572 (2010).

In Schill, the state Supreme Court considered whether personal emails sent by teachers in a Wisconsin school district constituted records per the state’s Open Records law. During the proceedings, the records requester presented a number of arguments:

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.

But after a detailed examination of the legislative history of the statute, policy reasons for allowing school employees use of government email systems for personal use, prior statutory history, advisory opinions from state attorneys general, relevant case law, and the interpretations of other state open records laws, the Supreme Court of Wisconsin determined that the emails had no connection to government business and were thus not records under the statute. Concluding, the court wrote:

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.

To the extent that a Wisconsin public university faculty member’s emails are connected to a "government function," they may be covered under the state’s Open Records law. But whether Cronon’s emails meet this criterion is not presently clear. And even then, the court held in Schill that if the emails are in fact records, "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." That may prove to be an interesting analysis; it is easy to imagine academic freedom arguments being marshalled against a request for full release of faculty emails.

Ultimately, then, the Republican Party’s request may be a matter for the courts.