WI Supreme court to determine if public employees’ personal emails fall under public records law

The Wisconsin Supreme Court will consider on Friday whether personal emails of public employees that are maintained on publicly-owned computers are subject to disclosure under the public records law in Schill v. Wisconsin Rapids School District.

Schill started in April 2007 when private citizen Don Bubolz decided he wanted access to non-work emails of five teachers in Wisconsin Rapids School District during a period in 2007. He requested all emails sent from the computers of those teachers.

The district’s computer use policy allowed its teachers and other employees to use the district’s email for occasional personal use. District employees were advised that the district owns not only the computers, but the email accounts used by the employees.

The Wisconsin Rapids School District concluded that the emails constituted public records because they were maintained on a public computer network. The teachers sought to block the release of their personal emails. The circuit court denied the injunction and ordered the district to release all of the personal and work-related emails.

The Supreme Court will decide whether the personal emails are “records” under the public records law. There is apparently no published case in Wisconsin that addresses whether purely personal emails kept on a public computers constitute public records under the statute.

If the emails are found to fall under the public records law, the Supreme Court will have to decide whether the presumption of disclosure will outweigh the public interest in protecting privacy, a balance that can be hard to strike.

Supreme Court says Washington referenda ballot names are public

Washington state has resolved an issue with the help of the Supreme Court. Turns out referendum ballot names are public, after all.

Referendum 71 expanded the state domestic-partnership law to grant certain marriage benefits to gay couples. Anti-referendum citizens got the referendum back on the ballot for a vote, and pro-referendum citizens wanted names. Those who got the referendum back on the ballot sued to block the disclosure of those names.

The issue was whether disclosing the names of those who got the referendum back on the ballot would violate the signers’ First Amendment rights. This argument stated that public ballots would ultimately lead to a chilling effect on expression and civic involvement; votes on sensitive issues made public would lead to harassment of those who vote in unpopular ways. The other perspective was to note the legislative nature of voting on referenda. Legislating comes with the presumption of complete openness equal to the importance public votes in a legislature. In this view, referenda votes are public by their very nature.

The Supreme Court ruled that petition signers’ names are not private in an 8-1 decision, with Thomas dissenting.

Repeated themes stressed the significant flexibility of states to implement their own voting systems, the importance of preserving the integrity of the electoral process and the promotion of transparency and accountability in the electoral process.

The justices said the plaintiff, Protect Marriage Washington, had not made the case its petition signers were any more subject to harassment than petition signers on issues as potentially emotional as taxes and property rights. This was one of the major points of those fighting to keep names private: those supporting unpopular positions would be in peril if their privacy was not respected. This lack of security would severely hinder people’s ability to express themselves.

There was also the viewpoint that the actions of private citizens are not a part of transparency: transparency involves the actions of government made public, not the actions of citizens. However, since voting on referenda can be seen as akin to making legislation as noted above, it would be of utmost importance that the votes remain public.

“Remain” public: that was another part of the pro-disclosure argument back in April: petitioners’ names are available through the state’s open records act, the Washington Public Records Act. In essence, the names were already public.

The justices, while deciding that disclosure was necessary, told the plaintiffs they could go to a lower court to get a specific exemption on other grounds besides 1st amendment issues. The chief lawyer said they would do just that.

The balance between privacy and open government remains delicate, and the fact that the court left room for future exemptions begs the question: how much of referendum information will ultimately be deemed public, and how will these lines be drawn?

CORRECTION: One commenter notes: “The issue was not about anti-referendum VOTERS, but the names of those who signed the referendum petition to put it on the ballot. The VOTER information is still private.”

It’s Sunshine Week!

We’ll get Sunshine Week started right, with our very own executive director writing in the Washington Examiner about how transparency gives people power to make government work for them, and how Sunshine Week is the time to get started:

State and local governments today face unprecedented fiscal challenges and unprecedented opportunities for fundamental reforms. In the coming weeks and months, citizens can forge truly historic change in state and local government by reforming the budget process, privatizing services, and returning professional full-time legislatures and councils to more traditional part-time bodies, among many other worthy initiatives.

Read about that here.

What is Sunshine Week? As Kansas Watchdog notes, Sunshine Week marks an annual effort to focus attention on the importance of government transparency, with print, broadcast and online news media, civic groups, libraries, nonprofits, school and other open government advocates participating. For example, Open Secrets is participating.

Sunshine Week is already proving worthwhile. For example, the Sunshine Project announced late last week attempts a statewide transparency effort.

We look forward to seeing what other government efforts to be open pop up this week. Spring is the perfect time for sun.

Oregon Attorney General has the right idea

Oregon Attorney General John Kroger is really taking transparency to heart. He’s taking part in a series of talks around the state that invite citizens and the media to suggest improvements to the state’s sunshine law.

The Attorney General is “very eager to hear people’s experiences and take input.” A great idea, since the one thing people want when they are upset or frustrated is a sympathetic ear. The people in attendance for this first talk were happy to have an outlet for their concerns, while a handful tried to point fingers about alleged corruption in the court system.

Still, the general feeling of the citizens in attendance was one of collaboration with the government. One citizen said “It’s not a matter of pointing fingers, it’s ‘let’s be as transparent as possible.’”

The talk went on in the same vein of constructive progress. Attendees made suggestions about how to improve Oregon’s law, including putting public records online, cutting fees and limiting what sometimes can be lengthy responses to public-record requests.

The attorney general’s office has taken several steps to promote government transparency. Kroger’s office has put public records and meetings manuals online, created a citizens guide to public records and meetings for laypersons, and has posted records requests online, among other things. A last step to improve Oregon’s law, according to Kroger, is to take suggestions from the public meetings to the Legislature.

This is exactly the type of personal initiative we believe in at Sunshine Review. Attorney General Kroger takes it one step further by actually asking to hear from people who have experience requesting information. And we think it pays off; the option is either becoming a transparent government voluntarily, or waiting too long until your legitimacy takes a hit and you’re forced to release information.

Montana county stays transparent, but not without a fight

Citizens in Montana have had a hard time getting public information, but at least the courts are on their side.

A Billings Gazette reporter had requested in January to see a complaint that had been filed against a county elected official. The complaint prompted the Yellowstone County Commission to hire an independent investigator at taxpayer expense. The reporter’s request was for a copy of the complaint and investigation report, which didn’t identify the complaining party or other private citizens.

District Judge Susan Watters reaffirmed legal precedent by ordering Yellowstone County to produce the requested public documents, saying:

“It is the county’s responsibility to go through the documents and determine what can be released. I believe the county failed to complete their duty that was required of them when the request was made to release the documents.”

Billings Gazette was justifiably annoyed by the whole situation, with an editorial writer stating:

The law doesn’t say that citizens have to wait to see public documents until a court reviews them or wait till a government attorney reviews them. It doesn’t say that citizens have to file written requests or forms. The law says that public officials who have custody of the document are to make it available to the public.

The Gazette notes that the denial could not have been due to privacy concerns, since the newspaper asked for copies of documents that had been redacted to remove the complaining party’s identification. The conclusion, then, is that the government just wanted to withold information because it could.

It is absolutely too much hassle to have to sue the county for information it should be disclosing on its own. The implications are great: a reporter, working for a newspaper, has the resources and the motivation to pursue information until he or she gets it. But sunshine laws exist for regular citizens, too, not just full-time sleuths. In this case, openness won, but it’s just a reminder that the price of liberty is eternal vigilance.

“Privacy” as information blocking: Howell schools and union e-mails

Chetly Zarko, a Michigan citizen, filed a Michigan Freedom of Information Act request in 2007 asking for thousands of Howell teacher e-mails in order to investigate the occurence of taxpayer-funded lobbying.

The Michigan Court of Appeals determined in January that the messages are not public records under the state Freedom of Information Act, overturning a decision from a Livingston County judge in 2008.

The court’s logic is stunning, stating that the nonexistence of e-mail at the time of the drafting of the public records law confuses the issue. Although e-mail did not exist at the time, the spirit of the public records law remains the same. The Basic Intent of the law reads:

The Freedom of Information Act regulates and sets requirements for the disclosure of public records by all “public bodies” in the state.

No where is there a mention of the type of mediums this information will be created or sent through, nor does it have a paper-specific definition of “public record,” nor is there any reason to believe that new technology will confuse the law or create a need for clarification. The law is clear: public bodies must disclose public records.

The Howell Education Association teachers’ union leadership stated that the case is not an issue of open government, but one of privacy:

“We believe the protection of privacy rights is fundamental to the American way, and we were confident our understanding of the law would be upheld [...] Rights of this sort are too important to leave undefended.”

The HEA filed suit against Howell Public Schools in 2007 after the district released some of the e-mails Zarko requested. Apparently, the content in the e-mails that makes the HEA so sensitive to privacy matters relates to “union matters.”

Privacy in the lives of private citizens is important. But when it comes to employees of the state, there is no privacy—there is either secrecy or transparency. If the e-mails are to be considered private, then they should have happened outside of the teachers’ working hours and from a non-work address.

The interests of taxpayers are more important than the interests of a school union. Here’s hoping Chetly Zarko’s appeal is heard through ears more sympathetic to the public good and open government.

Keep your cool, get information

The Freedom of Information Act, or FOIA, exists to help citizens ask for records of their states and local governments, as well as the federal government.

There are a few things to know about making requests that will help you succeed. For example, it helps to be as specific as possible: instead of saying you want records for the last five year, ask for records since January 1, 2004. There are many resources online with other tips, and be sure to check out WikiFOIA on Sunshine Review.

But once you know these tips about drafting a request, communicating with information officers and their secretaries can try your patience.

During our Back-to-School project, I made calls to school district information officers and superintendents to ask questions and follow up on requests. These calls were mostly routine, polite, and fast. One, however, proved a little more difficult. The information officer for Marion County Schools in Florida had no time for my call, and was offended by my undated request. Every portion of my request seemed to be a burden, and because I wasn’t prepared for this attitude, I lost track of my thoughts ended up having to call his office three times.

In order to make the best out of that situation, here are some tips on talking with FOIA officials, so that you are prepared when you have a run-in with a less-than helpful FOIA officer:

1. Have a copy of the request in front of you, so that you are prepared when the person on the phone references it.
2. Know the state’s specific open records policy. Some states waive fees if the information will be used to inform the public, and most states have limits as to what governments can charge for documents.
3. Do your research. During one call with a school district, the information officer told me that the district does not lobby. However, Sunshine Review had documents showing the district is active in lobbying. Other times, secretaries would write me off and tell me that they “didn’t think” the district lobbied. Know as much as you can before making a request so that you can gauge the level of knowledge or disclosure the person on the other side of the line is willing to share.
4. Know every angle: what questions do you still have about the process? What will the cost be? What information can you give up if the price is too much? Write these down so that you don’t forget if you get flustered.
5. Get the office information. Before anyone can hang up on you, you need the FOIA contact’s name, direct phone number, and an address or fax number to send the request to. Remembering this will save you a second phone call.

The most important tool, however, is your persistence. Don’t let the rude person on the phone intimidate you into giving up on a request. It’s their job to give us information, and it’s our right to know.

Tags: FOIA, freedom of information, open records requests