The use of electronic communication has rapidly expanded creating new modes of communication that are now part of everyday life. With the ease and convenience of electronic communication, public sector officials may inadvertently create public records, that may be subject to disclosure through a public records request or a subpoena. It is wise to keep cognizant of the rules regarding the relationship between public records and electronic communications.
Public Records Generally
The Public Records law defines a “record” at Wis. Stat. Section 19.32 as:
“any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority.[1]”
An “Authority” means any of the following having custody of a record: a state or local office, elective official, agency, board, commission, committee, council, department or public body corporate and politic created by the constitution or by any law, ordinance, rule or order….[2] Individual public officers are deemed to be the custodians of their own records.
In short, if an Authority, (including elected public officials or statutory officers such as clerks, treasurers and appointed board and commission members) has created or has custody of information, regardless of medium, any citizen may request and, in most cases, receive access to such records.
Electronic Communications as Public Records
The broad definition of a “record” means that electronic communications such as text messages, emails, and voicemails may be public records subject to disclosure. The fact that the information is contained in an electronic format is immaterial in determining whether information is a “record” under Wisconsin’s Public Record Statute. The Wisconsin Supreme Court and Office of Attorney General have consistently held that content, rather than medium, format, or location, is the controlling factor determining whether a document is a record under the Public Record Statute.[3]
Further, the location or nature in which those records are maintained does not affect whether a record is a public record. Authorities are not allowed to obviate their duty to disclose public records by holding records offsite or under the guise of personal text messages and email accounts.[4] Nor is the ownership of the equipment that stores the electronic information relevant: the content of personal computers and cell phones can be the subject of a public records request.[5]
An exception is private communications that do not address public issues or the operation of government. Because the law focuses on the content of the information, “purely personal” content does not fall within the scope of the Public Records Statute.[6] This is true even for purely personal communications made on official government email accounts. The Public Records Statute is meant to shed transparency on government business, not the personal lives of government employees.
While the Public Records Statute excludes “purely personal” content, electronic communications such as text messages, emails, and voicemails relating to government business are “records” under Wisconsin’s Public Records Statute, even if the communications are made from personal accounts or devices.
What is related to government business and what is purely personal is not always clear in practice. Common communications by authorities on private e-mail accounts sometimes constitute public records. Some examples:
- Using a personal cell phone to gather information regarding an issue that is being or may be considered by the public official’s board or committee, more than likely creates a public record.
- E-mail or text communications to a friend or relative on pending issues being considered by or pending before the governmental body are likely to be public records.
- Content posted by or on behalf of authorities (including individual officers) to social media sites, such as Facebook and X (formerly known as Twitter), to the extent that the content relates to government business would likely be a public record.
- Texts to other officials reporting progress on a government project of the public entity, again is likely a public record
The consequences of having public records on your private phone or computer are at least two-fold:
- Retrieval of those records may be the subject of a public records request requiring the production of those records (in fact in litigation it is not uncommon for personal phones and computers to be subpoenaed if they contain public records).
- The records created are to be maintained in the same manner as other public records.
Record Retention and Personal Devices/Accounts
Generally, Authorities are required to keep a record for not less than seven years, unless a shorter time period is fixed by the state Public Records Board.7 The Public Records Board implemented ten different record retention schedules[7]based on the record’s subject matter. These record schedules provide information regarding the record’s retention period, level of confidentiality, method of destruction, and/or whether the record must be transferred to the State Historical Society or UW Archives. Authorities may be required to retain records for longer than the seven-year period if the Authority is under audit or if the record is likely relevant to any pending or threatened litigation.
These record retention requirements apply to electronic communications from personal devices and accounts relating to government business.
To avoid public records issues that occur when governmental communications are made on personal accounts many authorities create separate public and private accounts on their devises, carefully policing their communication to ensure that public communication goes on the government account, not the personal one. Other public entities create government e-mail accounts for their officials directing that all government communications go through those accounts. Some go as far as purchasing iPads and setting up accounts for their officials to house all government communications. As all of these alternatives facilitate easier segregation and retrieval of public records, they all have merit and should be considered.
Authorities are discouraged from using personal devices and accounts for governmental business. When Authorities conduct government business on personal accounts or devices, the risks of noncompliance with disclosure and retention requirements increase. At the very least public officials should ask themselves “am I creating a public record” before hitting the send button.
[1] Wis. Stat. § 19.32(2) [2] Wis. Stat. § 19.32(1) (Emphasis Added). [3] Schill v. Wisconsin Rapids School Dist., 2010 WI 86. [4] WIREdata, Inc. v. Village of Sussex, 2008 WI 69. [5] MacIver Inst. v. Erpenbach, 2014 WI App 49. [6] Schill v. Wisconsin Rapids School Dist. [7] Statewide General Record Schedules, Wisconsin Public Records Board.
