Wisconsin court ruling addresses a different aspect of privacy and personal e-mails

A Wisconsin state supreme court ruling issued last week adds another dimension to the current debate over employee expectations of privacy in personal communications using employer-provided means. In this case, a group of teachers in the Wisconsin Rapids School District — who, as school district employees, are considered state government workers — sued to prevent the public disclosure of contents of personal e-mails they had sent from their work computers. The request to disclose the e-mails was filed under the state’s open records law (less formally known as part of the state’s “Sunshine Laws”), which in general make communications related to conducting government business subject to public review. The essence of the ruling in this case is that since personal e-mails are not information about the conduct of government business, their contents should not be open to the public under the Sunshine Laws. Specifically, the court decided “Personal e-mails are therefore not always records within the meaning of Wis. Stat. §19.32(2) simply because they are sent and received on government e-mail and computer systems.” The focus on whether the e-mails fall under the definition of “record” is critical, because if they can be considered records then the Sunshine Laws would seem to apply by default; the two dissenting justices in the 5-2 ruling based their objection on a belief that the e-mails should be considered records.

The issue of what reasonable expectations of privacy employees may have with respect to personal communication using employer-provided resources has received a lot of attention in recent months, most notably in the context of the June U.S. Supreme Court decision in City of Ontario v. Quon, although ironically that decision left unresolved the question of reasonable expectations of privacy, and focused instead on the legality of a government employer’s search of person employee communications (in Quon, the communication was text messages sent via pager). While much of the current debate is focused on government agencies as employers and public sector employee rights, the issue is quite relevant for private employers as well, despite the fact that generally private companies have much broader latitude in monitoring their employee’s behavior and use of company resources, as long as they comply with notification requirements and other terms of the Electronic Communications Privacy Act (ECPA). A New Jersey state Supreme Court ruling handed down in March found that some narrow protections of employee privacy exist even when using private-sector employer-owned computers and network resources (specifically that attorney-client privilege was not waived when using such resources).

What’s different about the Wisconsin case is fact that the alleged violation of employee privacy rights did not stem from the school district’s intent to read the teachers’ personal emails, but instead a request to disclose the contents for public inspection. The Wisconsin Supreme Court decision, written by Chief Justice Shirley S. Abrahamson, begins by noting the state’s strong commitment to transparent government operations and long history of using open records and meeting laws to help ensure such transparency. She also points out that the Sunshine Laws in question were enacted at a time (1970s and ’80s) when e-mail technology wasn’t in common use, although current official guidance on compliance with the state Public Records Law makes it clear that electronic records are well within the scope of the law’s provisions, as it is the content, not the format, of the information that is important. This guidance, most recently updated in 2007, notes that “No Wisconsin precedent addresses whether personal e-mail received or sent on government equipment falls under the personal use exception to the definition of ‘record.'” The documentation notes, much as the Chief Justice did in her decision, that “Courts in other states, however, have concluded that personal e-mails sent to or from government accounts are not public records,” a set of precedents to which Wisconsin may now be added.