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.

Does “transparency” extend to private citizens’ actions? The Supreme Court looks at WA Referedum 71 case

The U.S. Supreme Court will hear Doe v. Reed today, a case from Washington regarding the confidentiality of names of petitioners attempting to repeal Referendum 71.

Referendum 71 expanded the state domestic-partnership law to further grant certain marriage benefits to gay and lesbian couples.

The issue in question is whether disclosing the names of anti-referendum voters would violate the signers’ First Amendment rights. If the court rules it does, that would keep private all referendum and initiative petitions in Washington, and potentially those in the 12 other states that allow citizens to put measures on the ballot.

The Supreme Court has never ruled on the implications of signing a ballot-measure petition. It can either be private, political speech deserving of protection, or it can be considered the equivalent of legislators making law, an action with no expectation of privacy.

Those who oppose making the petition signers’ names public include traditional-values organizations, think tanks, and individual-rights groups like the ACLU. They oppose making names public for several reasons:

* Signers could face harassment if their identities are revealed. This happened to supporters of California’s Proposition 8 in 2008.
* Harassment or the threat of it could discourage citizens from actively participating in government.
* The jobs of petitioners could be put in jeopardy if petitioners hold different beliefs than employers
* It’s an example of government-regulated, limited speech.

Stewart Jay, a University of Washington law professor, thinks the court will decide to keep names private. The Supreme Court has ruled before that gathering petition signatures is core political speech protected under the First Amendment, Jay said, and he added the court has a tradition of protecting anonymity for political actions such as leafleting, especially when related to elections.

Those who support making names available include gay-rights supporters, the Washington Secretary of State, 23 states, and media organizations (including the Seattle Times and most of Washington’s daily newspapers). The arguments for making petition signers’ names public include:

* The fact that such information is subject to disclosure upon request, as required by the Washington Public Records Act, according to Washington Secretary of State Sam Reed
* Along the same lines, names should be public because it is a part of transparency needed for people to trust their government.
* Out of 24 states that allow citizen referendums or initiatives, 23 disclose petition signatures as public records.
* There is no evidence that petition signers face harassment when names are public.

Supporters say the burden placed on petition signers is inconsequential compared with the “very compelling, very strong government and public interest in transparency, accountability and fraud protection.” Eugene Volokh, an attorney specializing in First Amendment law, says the state could tell its citizens that their signatures will be public if they want to sign.

Looking at it one way, transparency would dictate that all information be public. This would of course include petition signers. On the other hand, when we at Sunshine Review speak about transparency, we mean transparency as related to the actions of government bodies, officials, and representatives. The actions of private citizens, whether political or not, are not included in our transparency project.

We’d like to know what you think: is making referenda signers’ names public important to transparency? Or is it an invasion of privacy, completely unrelated to transparency? We certainly await the Court’s decision.