School board’s eMail deletion violates open-records laws

School board members in Oshkosh, Wis., have admitted deleting eMail correspondence with stakeholders—an action the state’s attorney general says violates Wisconsin’s open-records laws.

The news comes less than a year after eSchool News reported on a similar controversy in nearby Madison, Wis., raising the question whether school officials nationwide understand the significance of electronic records in the digital era.

The Associated Press (AP) on Nov. 11 reported that every member of the Oshkosh School Board had deleted eMail messages sent to them by constituents.

The problem was revealed when the Oshkosh Northwestern, a regional newspaper, made an open-records request for all eMail messages between the board and its constituents regarding district boundary and consolidation plans. When the paper received only 470 messages, it asked the state attorney general’s office whether eMail correspondence should be regarded as a matter of public record.

According to the AP report, the response from Attorney General Jim Doyle was unequivocally, yes. Failure to save all of the messages violated open-records laws, he said. Several school board members told eSchool News they deleted correspondence without knowing its significance under the statute.

“Being a nine-year board member and the chair of our policy and governance committee, I had no idea that personal eMail was considered a public record,” said board member Mike Stratz.

Other school board members had similar explanations.

“I did not become aware of the fact that these eMails were public records until after the Oshkosh Northwestern requested we turn over all correspondence on the middle school consolidation plan to them,” said board member Teresa Thiel. “Several times our policy and governance committee had discussions regarding what school board members needed to keep and for how long, and there were no definitive answers because this is really an untested area of the law.”

Thiel, who said she received more than 200 messages on the consolidation plan alone, claims she did not intentionally delete any of the eMails. However, storage constraints imposed by her public eMail provider caused some of the messages to be erased inadvertently.

Since the open-records request was made, school board members say a system has been put in place for each board member to store messages concerning district-related affairs.

“The board has just set up an archive mailbox at the district office for each board member. [For] every piece of eMail regarding school district business we receive or send … we copy our archive mailbox before we delete it from our computers,” Stratz said.

The Oshkosh case resembles another controversy eSchool News reported on last year in the Madison Metropolitan School District. There, district officials came under fire after local Republican fund raiser Phillip Prange filed an open-records request for eMail correspondence between the school board and its constituents regarding the board’s decision to prohibit children from saying the Pledge of Allegiance in schools.

Upon making the request, Prange received only a few hundred messages and was told most of the correspondence had been deleted to free up space on the district’s information-laden computer system. Though officials attempted to retrieve the deleted eMails, additional correspondence was made available only in such instances where recovery efforts proved successful.

At the time, Dane County District Attorney Brian Blanchard—who investigated the matter—said eMail between school board members and constituents was protected under the state’s open-records laws, but the timing was critical in deciding whether or not the messages had been erased illegally. No charges were filed against the district in that case.

There is no statute in Wisconsin state law that specifically addresses eMail use by government officials. But as the two Wisconsin cases demonstrate, school officials should assume that eMail messages—and any other form of electronic correspondence, such as a bulletin-board forum on a school web site—are public records subject to the same open-records laws that apply to paper documents.

In Wisconsin, Thiel said some notices on committee hearings and other school-related business reportedly must be kept for seven years.

Although such statutes are state-specific, Edwin Darden, senior staff attorney for the National School Boards Association (NSBA), said there are a number of precautions school officials nationwide can take to avoid similar legal missteps.

For instance, Darden said the NSBA recommends that school systems write a discard policy for electronic correspondence.

“You cannot destroy things in anticipation of litigation or in anticipation of an open-records request,” he said. But if you have a pre-established policy stating that eMail records are to be deleted after a certain number of days or weeks, it becomes the requestor’s responsibility to file their petition before that time limit expires.

Darden called the internet “still new” and said many state governments are struggling to determine how records kept in cyberspace relate to legal jargon originally meant for paper documents stored in file cabinets.

“You’re going to have some stumbles along the way… as people decide how to operate in the cyber world,” Darden said.

To help educators sidestep some of the pitfalls, the NSBA last year published Legal Issues & Education Technology: A School Leader’s Guide. The book, now in its second edition, provides a number of suggestions for officials on how best to manage the use of electronic communication in schools.

Suggestions include:

  • Develop a successful use policy for technology that is reasonable and enforceable.
  • Understand that all electronic correspondence, including eMail, is subject to a Freedom of Information Act request from outside parties.
  • Instruct board members to keep personal communications separate from school-related business.
  • Set up an archival system for school-related eMail that is not unlike the process used for paper-based documents.
  • Use back-up discs or drives to store information for as long as your state requires under the law.


National School Boards Association

Oshkosh Northwestern

Oshkosh Area School District

Madison Metropolitan School District

eSchool News Staff

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