Wisconsin Attorney General releases Memorandum regarding the practical impact of Schill v. Wisconsin Rapids School District on the public records law

By Anders Helquist

Last month, the Wisconsin Supreme Court held that purely personal e-mails sent and received on government equipment are not subject to disclosure under the Public Records Law. Schill v. Wisconsin Rapids School District, 775 N.W.2d 103 (2009). On July 28, 2010, Wisconsin Attorney General J.B. Van Hollen issued a Memorandum to address the practical impact of the Schill decision on records custodians.

The Attorney General’s Memorandum indicates the “purely personal e-mail” exception “should be narrowly applied.” The Memorandum also states, “If there is any aspect of the e-mail that may shed light on governmental functions and responsibilities, the relevant content must be released as any other record would be released under the Public Records Law.” [emphasis in original]. Also, the Memorandum addressed partial redaction of e-mails and stated, “If a document contains both personal and non-personal content, a records custodian may redact portions of the document so that the purely personal information is not released.”

If you hoped there would be fewer public records requests for e-mails following Schill, that may not be the case. The Memorandum encourages individuals who are concerned about misuse of public resources to make public records requests regarding personal use of government e-mail.

Specifically, the Memorandum noted, “an individual may request existing records containing statistical information, including the number of e-mails (personal and business) and the time and dates of the personal e-mails over a specified period.”

The Schill decision and the Attorney General’s interpretation will likely place the records custodian in the position of having to sort through e-mails even if an employee declares an e-mail to be purely personal. It appears the records custodian will have to engage in a more time consuming review as employers try to follow the opinions of both the Supreme Court and the Attorney General. There also may be a spike in employee e-mail use (and abuse) if they perceive that Schill gives them carte blanche in their use of the employer’s e-mail system.

If you have any questions on how to handle records requests or how to limit employee e-mail abuse after Schill and the Attorney General’s Memorandum, please do not hesitate to contact us.

This article should not be construed as legal advice and is intended for general informational
purposes only. If you have any questions, you should consult your legal counsel..