E-mails are public records, too, officials are learning

By Meredith Clanfield

In the decades when the term “dial-up” meant picking up a phone and dialing a number, public business was solely conducted via the written letter or on the telephone. For small town mayors like Hurley Town Mayor Joseph Pinardi, e-mail and electronic correspondence is still untapped.

“It’s a small town, a small time gig and I only work part-time,” said Pinardi. “I don’t have a computer available to me at the office, so I don’t use or need e-mail.”

Pinardi instead dictates all messages and letters to a secretary who types them and mails them through the U.S. Postal Service.

To many other public officials and regular citizens, this procedure may seem ancient and cumbersome. These days it seems almost everyone uses e-mail for both business and personal reasons.

The use of e-mail by public officials has raised new questions about public access to government business. While the public records law references “electromagnetic” records, a number of major policy questions are left largely unregulated at the state and national level. This means it is often times up to individual officials or local governmental bodies whether or not their e-mails are open for viewing by the public and media.

Nationally, Alaska Gov. Sarah Palin ran into public controversy when her office said it might cost as much as $15 million to access her e-mail accounts as well as those of other state officials. In Texas, a blogger discovered Gov. Rick Perry’s policy of deleting all e-mails after seven days.

The September hacking of one of Palin’s personal e-mail accounts has also raised many questions regarding the appropriateness of an elected or public official conducting business via their personal e-mail. In Palin’s case, a group of computer hackers accessed the Governor’s unsecured Yahoo e-mail account and posted much of its contents on the Web for everyone to see.

Under the current Open Records Law for the State of Wisconsin, the definition of a “record” means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved regardless of physical form or characteristics, which has been created or is being kept by an authority.

The inclusion of “electromagnetic” records includes e-mails written and received by a public official or administrator. However, the Open Records Law does not clarify how long such records must be kept, what systems such officials must use to store and retrieve e-mail records, and whether and when e-mail communications may violate the law.

According to Attorney Roger Allen of the Madison City Attorney’s Office, he and the rest of his staff consider e-mails to be a public record and advise all other city officials that the use of e-mail is subject to the Open Records Law.

“I think the question of whether or not e-mails are subject to the (Open Records Law) are settled,” said Allen. “We’ve warned various public officials against using any account but their city account to conduct business.”

Alders have laptops issued by the city with their city e-mail address preloaded onto computers to deter them from using personal e-mail accounts. If a public official does receive a business or office-related e-mail to their personal e-mail account, they are advised by Allen and the City Attorney’s Office to respond from their city e-mail account.

As of 2004, the city uses a computerized system that captures every e-mail transaction and records it onto a permanent record. Prior to adapting this system, the city would make a back-up tape of e-mail transactions, forcing them to restore each account’s mailbox, assuming no officials emptied their computer’s “trash.”

The current system holds all e-mails sent, received and deleted by city officials and allows them to browse for archived emails by search words and date, expediting the records retrieval process.

Allen says records custodians often call requesters to make sure it’s clear what they’re looking for.

 “Most of our requests from media or the lay person are in broad terms so they don’t miss anything, but it is in their best interest to make their requests more specific so we can search our data base and get them the right records,” Allen said.

Allen wants the public and media to know that the City of Madison embraces the Public Records Law and that they want the public to know what is going on in their government. Records requests are not filtered through the city Attorney’s Office as records custodians are trained in regards to what records they are able to disclose and what documents cannot in order to protect the public’s best interest.

The University of Wisconsin-Madison has a similar policy when it comes to the state’s Open Records Law. According to the UW’s Office of Administrative Legal Service, the public may request and view any records aside from “drafts, notes, preliminary computations and like materials prepared for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is working.”

This includes e-mails that the “originator” deems personal or sent from a personal e-mail account, similar to the policies put in place by the City of Madison.

However, according to the University’s Legal Affairs Office, all fulfilled records requests must be screened and approved by a University-appointed lawyer before the records are delivered to the requester.

While in Madison officials say requests for e-mail records have become somewhat routine and are turned over regularly, the same can’t be said for other parts of the state. In the Wisconsin Freedom of Information Council’s recent audit of the state’s compliance with the Open Records Law, counties like that of Grant, Langlade and Pepin did not respond to requests for e-mail records. Janesville’s city administrator gave auditors the runaround when they asked for copies of e-mails, telling them that they had to talk to various other offices to get such documents. When the e-mails were finally obtained, much of the information was blotted out.

Court rulings have often affirmed that public officials must release e-mail and other electronic records, still the ambiguity of the Open Records Law still poses problems for the media and citizen who wish to view or obtain copies of official, e-mailed documents. The Wisconsin Freedom of Information Council recommends that e-mails and electronic records should be preserved as long as practically possible, still there is no official ruling that prevents public officials and administrators from deleting e-mails that they view to be unnecessary to retain.