IS YOUR EMAIL SYSTEM
WAITING TO BECOME THE
NEXT “GOVERNMENT SCANDAL”?

by Bob Gregg

Recent developments highlight the importance of a public employer being aware of and monitoring staff use of computer and internet use. What employees and government officials thought was their personal use, is now becoming the target of Public Records Requests.

Romantic, Sexually Explicit Emails Can Be “Public Records”

In the case of In re Petition of the Bd. of Commissioners of Arapahoe County (Col. Ct. App., 2004), the court ruled that 101 romantic and sexually explicit email messages between a county clerk and his girlfriend can be released to the public. They were sent or received on the county’s computer system during the course of the work week. Therefore, the messages can be “public records” subject to public information requests and public disclosure (with some discretion of the court to determine whether there is anything which should not be released.) The message is that government sector employees can have less expectation of privacy than those in the private sector. Citizens want to know how their tax money is being used by government workers.

Newspapers, former employees, jealous spouses and “concerned” citizens are demanding to know how public employees are using their communication systems. The “records” are not only embarrassing fodder for the press; they can also become the basis for litigation. Records of visits to pornographic sites or of sex, race, religious or ethnic jokes emailed from or around the office have fueled harassment and other discrimination cases.

Different Court - Different Decision

The Florida Supreme Court addressed the same issue with the opposite result. In State of Florida Times Publishing Co. v. City of Clearwater (Fla. 2003), a newspaper requested all personal emails sent or received by two employees for a 12-month period. Using the Florida statutory definition of Public Record, the court held these were not “public records . . . made or received in connection with public business.” The court rejected the argument that anything placed or stored in a publicly-funded system is a “record.” The court also found that the city’s employment policy on rights to access employees’ computers still did not convert personal messages into “in connection with public business . . . records.”

This is a good example of how courts may see the same scenario differently. States often have very different definitions or different approaches to similar issues.

Wisconsin

The personal email question does not yet have a definitive answer in Wisconsin. The statutes and decisions present elements which could be used to argue either way, for or against a public release.

The Wisconsin Public Records Statute provides that 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.” Wis. Stats. §19.33(2).

Possible Defenses Against Public Release

There is an Attorney General opinion stating that public records must have a relationship to the function of the public agency. (72 Atty. Gen. 99). This seems to support an argument against release of personal emails. However, this Opinion was issued in 1972, long before there were personal computers and email. The Opinion dealt with “preliminary drafts” of government reports and documents, and did not touch on personal communications.

Another defense against a request for personal emails is that Wis. Stat. §19.32(2) has language which could potentially be used to argue for the same result as the Florida court reached in The Times Publishing Co. case. The Wisconsin section states:

“Record” does not include 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; materials which are purely the personal property of the custodian and have no relation to his or her office materials to which access is limited by copyright, patent or bequest . . . . (emphasis added)

However, this language is a bit different than the Florida statutes. Florida has a specific definition of what constitutes “Public Record,” the information had to be “. . . made or received in connection with public business.” The Florida court relied on that specific language.
Wisconsin’s statute has no such language.

Elements in Favor of Public Release

A question can be raised as to whether the statute’s “personal property of the custodian” language really covers items which have been entered in a public electronic system and are no longer in the direct possession and control of the person. The personal messages are not in the desk or file cabinet of the public employee. Once the system user has let the messages become part of “the system,” it may be difficult to argue that they are “personal property.”

Wisconsin has liberally interpreted the Public Records statute. In Wosnicki v. Erickson, 202 Wis.2d 178 (1996), the court forced release of an individual’s personal information including copies of checkbooks and finances which were in the possession of a district attorney’s office. The court required notice and the opportunity for objection before a record is released. See also, Klein v. Wisc. Resource Center, 218 Wis.2d 487 (Ct. App. 1998). However, in Wosnicki, the court ruled that highly personal information in the records is not exempt from disclosure when any citizen makes a public records request: “there are no blanket exemptions other than those provided by common law or statutes.”

There are several specific statutory preclusions pertaining to release of public information. These include prohibiting release of information on HIV/AIDS test results, certain juvenile records, information which may “endanger life or safety” of others or “identifies a confidential informant, student records, etc. However, none of these exceptions to public release cover one’s personal emails.

The Wosnicki decision also found the purpose of the Public Records Law was “to provide the broadest possible access of the public to public records” and “personal records” are not exempt.

The statute specifically states that public records can be “any material . . . which has been created or is being kept by an authority.”

The previously-cited Attorney General Opinion cites §19.31, Wis. Stats., on the “right of the electorate to be informed regarding the affairs of government.” Though personal email is not an “official act” of the employee or official, a citizen can make a claim that improper use of the tax-paid computer system is a matter of public interest. Most citizens would not want their tax-funded public computer system and employees’ paid time used for a variety of “offensive” purposes.

So, given the “any material” language, and the Wosnicki holding that “there are no blanket exemptions,” there is a good chance that a Wisconsin court would lean the same way as the Colorado Bd. of Commissioners of Arapaho County decision. Personal emails of public employees and government officials could be turned over to the public.

What Should an Organization Have in Place?

Some organizations have prohibited all personal use of the computer system. These policies may eliminate the concerns, they are legally valid, and are within the employer’s right. However, they are also difficult to enforce, require extra “policing” which takes more time and effort than a standard “monitoring” policy, and generate resistance by employees.

Most employers have a “reasonable usage” practice accompanied by a “monitoring” policy. The warning that all usage will be monitored and recorded by management usually decreases personal use and keeps it to a low level.

The following practices are advisable in preventing personal use from becoming an embarrassment to staff or officials, or from becoming a “public scandal.”

1. “No Privacy” Warning to All Employees and Government Officials. Give fair warning that any use of the public computer system, Internet, or Intranet can be a “public” usage and may be subject to public records requests.

2. Authorization to Monitor. All users of the system should receive a computer usage policy which, among other things, describes prohibited usages. The policy should have a user signature which authorizes the organization to monitor, access, retrieve, copy and disseminate any and all information or messages from the individual’s computer or system usage. This authorization is also important for compliance with the Federal Electronic Communications Act. (If you do not have a current policy, Boardman Law Firm has developed general policies which can be easily tailored to any organization.)

3. Periodically Monitor. Any policy or warnings lose effectiveness unless there is at least sporadic monitoring of usage and enforcement of sanctions against those who violate the prohibitions. In fact, arbitrators and some courts have ruled that policies have “lapsed through atrophy,” and long term non-enforcement has led employees to believe they had regained an “expectation of privacy.”