SCHILL v. WISCONSIN RAPIDS SCH. DIST

< class="paragraph"> Lead op., ¶ 141.

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 Wis. Stat. § 19.31. Because of the strong legislative commitment to open and transparent government embodied in Wisconsin's Public Records Law, it is appropriate to fully set out and discuss the legislature's policy objective. Section 19.31 provides:

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 Wis. Stat. "ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access," was not followed in the lead opinion. See Wis. Stat. § 19.31. The lead opinion accords no presumption of access to the requested e-mails.

¶ 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 Wis. Stat. § 19.32(2). § 19.31; Fox, 149 Wis. 2d at 410-11.

¶ 215. Any exception to the general presumption of complete disclosure must be narrowly construed. Zellner, 300 Wis. 2d 290, ¶ 31 ("[Statutory 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).

¶ 216. Here, there is no statutory language excepting any type of e-mail from disclosure. Despite this, the lead opinion creates a broad, blanket exception for ail e-mails in the School District's e-mail account, based solely on the teachers' allegation that the e-mails are "personal." The lead opinion has crafted its exception "by implication only," id., when it concludes that for an e-mail to be a "record" under Wis. Stat. § 19.32(2), it must involve the carrying on of governmental business. There is nothing in Wis. Stat. ch. 19 that supports this interpretation. Indeed, claims have been filed against government employees based on the allegation that government computers were being used for purposes other than government business.

Lead op., ¶ 22, passim.

See, e.g., State v. Jensen, 2004 WI App 89, ¶ 93, 272 Wis. 2d 707, 681 N.W.2d 230, subsequent appeal at State v. Jensen, 2009 WI App 26, 316 Wis. 2d 377, 762 N.W.2d 833, rev'd State v. Jensen, 2010 WI 38, 324 Wis. 2d 586, 782 N.W.2d 415.

¶ 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 e-mails 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 e-mail. This is a curious position for justices that have never read any of the e-mails. As stated, the e-mails are not in the record, so there is no means by which any justice could know the content of the e-mails.

See lead op., passim.

¶ 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 e-mails 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." 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 e-mails say. Notwithstanding this lack of knowledge, a majority of this court relates what the e-mails say.

Lead op., ¶ 29.

¶ 221. Here, Bubolz, the records requestor and a party to this action, alleges that the teachers are attempting to preclude him from reviewing the extent and quality of use of School District computers and e-mail services during the workday. He explains that he "believes if the teachers' e-mails, sent or received, discussed school board members, school board proceedings, school board candidates or organizations supporting or opposing school board members or candidates," he should be able to learn of it. The School District agrees that if the e-mails demonstrate "excessive personal usage" of District e-mail accounts during the workday "the public's interest may then be implicated." I, too, agree with Bubholz.

The three justices who participate in the lead opinion and Justice Bradley in her concurring opinion rely on an asserted knowledge of the e-mails' content.

Intervenor-Respondent's Brief, 2.

Id. at 3. The lead opinion misstates its knowledge of the content of the e-mails when it says, "None of the e-mails at issue here relate to school board candidates." Lead op., ¶ 26 n. 10. Neither Chief Justice Abrahamson, who authored the lead opinion, nor any other justice has seen the teachers' e-mails. Therefore, there is no basis on which to make such a statement. It. is unfair to the public to make statements of material fact about which the court has no knowledge.

Defendant-Respondent's Brief, 12.

¶ 222. While one could assert that those types of e-mails are persona] in nature 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 However, there is no way of knowing what is going on here because the lead opinion prevents the public from learning the content of the teachers' e-mails and how often they are using School District e-mail accounts and computers for non-job related tasks.

As I have already noted, a "personal" e-mail is not necessarily a "private" e-mail. The School District's policy on e-mail usage gives notice that the e-mail accounts are not private and may be monitored.

As I related above, Bubolz's appellate brief, raises this concern. Query, what is to prevent a government employee who is campaigning through the use of governmental e-mails from characterizing those e-mails as "personal," thereby excluding them from disclosure when a public records request is made for e-mails.

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 Wis. Stat. § 19.32(2), but rather that they are records covered by the Public Records Law, I must determine whether the circuit court properly applied the balancing of interests test. See Milwaukee Journal Sentinel, 319 Wis. 2d 439, ¶¶ 54-55.

¶ 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. 7c?. 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.

¶ 225. Here, the teachers assert they have a personal privacy interest in preventing disclosure that rises to the level of a public interest. The teachers cite two cases protecting the privacy of phone conversations and personal letters delivered to the school as supportive of their interests here. Fischer v. Mt. Olive Lutheran Church, Inc., 207 F. Supp. 2d 914 (WD. Wis. 2002); Watkins v. L.M. Berry' Co., 704 F.2d 577 (11th Cir. 1983). They assert that "[i]f a teacher makes a personal phone call at lunch time on the school phone, she does not waive all expectation of privacy in her phone conversation[,] . . . [and] [i]f a teacher receives a personal letter in his school mailbox, he does not waive all expectation of privacy in his [] mail."

Plaintiffs-Appellants' Brief, 18.

¶ 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." 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 e-mails. Neither of the cases cited by the teachers involved a similar policy and acknowledgement.

365.1 Network and Internet Acceptable Use Policy, 300-104.

¶ 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 certain privacy rights and are subject to a degree of public scrutiny." Local 2489, 277 Wis. 2d 208, ¶ 26 (citing Wis. Newspress, 199 Wis. 2d at 786-87).

¶ 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, 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. Accordingly, I would affirm the circuit court order releasing the e-mails.

I, like every other justice, have not seen the e-mails. However, the presumption in favor of complete public access must be overcome by a compelling public interest in nondisclosure. Local 2489, AFSCME, AFL-CIO v. Rock Cnty., 2004 WI App 210, ¶ 26, 277 Wis. 2d 208, 689 N.W.2d 644 (citing Wis. Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, 199 Wis. 2d 768, 786-87, 546 NW.2d 143 (1996)). The teachers have identified no compelling public interest.

III. CONCLUSION

¶ 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, Wis. Stat. § 19.32(2). This exception, when combined with the concurring opinions, grants government employees, here, teachers, a broad, blanket exception for e-mails that the teachers create in School District e-mail accounts, on School District computers, maintained by School District servers, when the teachers characterize their e-mails as "personal." This broad exception 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. The lead opinion is contrary to the letter and the spirit of the Public Records Law and is a disservice to the public's interest in government over-sight. Because I conclude that these e-mails are records and that the teachers have not met their burden to show that the public's interest in nondisclosure outweighs the public's interest in disclosure of these e-mails, I respectfully dissent.

¶ 231. I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins in this dissent.