Is personal eMail subject to open-records law?

A case that will be argued before the Wisconsin Supreme Court in November could set a precedent that affects the way educators and other public employees use their eMail.

The court has agreed to hear a case that will determine whether the public’s right to know what its government is doing extends to reading personal eMails of teachers sent while at work–and legal experts say the employees in question, and all public school employees in general, might not have a reasonable expectation of privacy.

"The whole idea of a concept of expectation of privacy as a public employee is really sort of illusory. There’s not an awful lot of privacy, and one shouldn’t assume that there is," said Kathy Ahearn, partner at the Guercio & Guercio law firm in New York. "And I think this case, no matter how it’s decided … is really a cautionary red flag to everyone to not use their eMail for personal reasons unless it’s very minor and very incidental."

The case began when a private citizen filed a public-records request asking the Wisconsin Rapids School District to provide eMail messages sent "from the computer [the teachers] use[d] during their school work day" between March 1 and April 13, 2007. He stated that he was on a "fishing expedition" to see if the teachers violated school policy by using their work eMail to discuss school board elections.

Five of the teachers objected to the release of purely personal eMail messages that did not relate to the school district or to any official acts of government, and they argued that the school district should at least remove purely personal text and any personal eMail addresses prior to the release of the messages. The circuit court ruled in favor of the district, stating that the privacy and "reputational" rights of Wisconsin citizens in their personal eMail messages did not outweigh the public interest in disclosure.

The district argued that the teachers’ privacy interests are weakened because they were aware of its computer policy, which warns users their eMail could be monitored. Pilar Morin, a partner at Liebert Cassidy Whitmore in San Francisco, agrees that this policy weakens the teachers’ case.

"The employees in question knew that the employer was going to be monitoring their eMail, because they had notice of an eMail policy or an electronic communications policy," Morin said, adding that the teachers argue they were unaware of the scope of the public-records act.

"I think all employees have to be aware that if they have signed off on an electronic communications use policy and their eMails are running through the network, then essentially those communications become the property of that employer–and the employer [might] have certain legal obligations," she said.

An opinion written by judges at the District IV Wisconsin Court of Appeals certified the teachers’ appeal to the state Supreme Court.

"Whether and to what extent personal eMails of public employees are subject to the open-records law is a question of first impression in Wisconsin. We believe the Supreme Court is the appropriate forum to decide this important question," the opinion read.

Oral arguments are scheduled to be heard by the Wisconsin Supreme Court on Nov. 10.


Wisconsin Rapids Public Schools

Karen Schill v. Wisconsin Rapids School District

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