I’d like to propose an experiment.
We all have friends who are judges, prosecutors, public defenders, city attorneys or lawyers with state agencies.
I suggest that you send to one of your friends an email at their work account that is totally unrelated to work. Maybe something along the lines of: “That David Ziemer is such a jackass; I hate him so much.”
You will get one of three responses: (1) none; (2) a phone call wholeheartedly agreeing with your assessment of David Ziemer, but no responsive email; or (3) an emailed reply that says only, “Thank you for sharing.”
The reason for this is that anyone who’s subject to the open records law, and isn’t a complete nitwit, knows his emails are public records.
But one University of Wisconsin professor apparently didn’t get that memo, resulting in a recent kerfuffle over a garden-variety open records request.
Apparently, somebody got suspicious that the good professor might be using his work computer for political purposes, and wanted to find out.
The open records law contains many exceptions, and the university has a duty to refuse disclosure of those emails protected by a statutory exception. And no one has a problem with that.
But the history professor’s response to the request was to accuse the requestors of “McCarthyism.”
I’m sure glad the professor wasn’t teaching history back when I was an undergrad at UW, or I’m sure I wouldn’t know anything about history at all.
I wonder what the professor would think if, back in the 1950s, some concerned citizen had filed an open records request, asking for a copy of McCarthy’s alleged “list” of Soviet spies working in the State Department.
Apparently, in the professor’s twisted interpretation of American history, the concerned citizen would be the McCarthy, and McCarthy would be the victim.
Unfortunately, we’ll never know whether the professor was using his taxpayer-provided computer for political purposes, rather than work. Last year, in Schill v. Wisconsin Rapids School District, 2010 WI 86, 786 N.W.2d 177, the Wisconsin Supreme Court created an exception to the open records law out of thin air, holding that government employees’ personal emails are exempt from disclosure.
As Justice Patience Drake Roggensack aptly noted in dissent, “This broad exception prevents the public from discovering what public employees are doing during the workday, in the workplace, using equipment purchased with public funds.”
I send personal emails to friends who are government lawyers all the time. But I never get a responsive reply via email. Prior to the decision in Schill, they all assumed their personal emails were open records, and they didn’t want to say anything that could come back to haunt them. Even now that Schill is precedent, they’ve grown accustomed to not abusing their taxpayer-provided computers for personal emails.
So, I’m going to start our little experiment by sending this column to a government lawyer via her government email account right now. And I know exactly how she will respond; she will email me back, “Thank you for sharing.”