Wisconsin school districts are often posed with the conundrum of balancing the privacy rights of parents with their obligations under the open records law.  School districts have often taken the position that the privacy of the parents is of higher public interest than the disclosure of their email addresses pursuant to a public records request, however, courts have frequently held the opposite.

In a Wisconsin Court of Appeal’s decision issued December 7, 2022, the court addressed this issue in the context of a request from an individual in the community seeking access to a list of parent email addresses that the District used to send out communications throughout the school year.

Facts

In, Gierl v. Mequon-Thiensville School District, a community member and Mequon Alderman, Mark Gierl, filed a petition for a writ of mandamus, following his request for the list of email addresses to which an email invitation was sent.  The email invitation was for a community webinar on the topic of privilege and race.  In response to Gierl’s request, the District sent a letter indicating the invitation was sent to “all parents and staff members” of the District.  The District provided the list of all staff district email addresses to which the email invitation was sent, but refused to provide the list of personal email addresses.  In denying that portion of the request, the District referred to a 2010 letter by an assistant attorney general indicating it was not unreasonable under the Wisconsin public records law balancing test for the District of South Milwaukee to deny a request for parent email addresses on the basis that disclosing parent email addresses would inhibit parent-school communication by discouraging parents from providing their email addresses.  Gierl subsequently filed a writ of mandamus pursuant to the public records law seeking the list of parent email addresses to which the invitation was sent.  Both parties filed cross-motions for summary judgment, and the circuit court granted summary judgment to Gierl.  The District then appealed.

Wisconsin Public Records Law Analysis

The legislature stated in Wis. Stat. § 19.31 that it is “the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them, providing persons with such information is declared to be an essential function of a representative government.  To that end, Wis. Stat. § 19.32 to 19.37 should be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business.  The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”

Further, the Wisconsin State Supreme Court has noted that this statement by the legislature “is one of the strongest declarations of policy to be found in the Wisconsin statutes.”  See Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶49, 300 Wis. 2d 290, 731 N.W.2d 240.  Our Supreme Court goes on to state that Wisconsin maintains a “strong presumption of complete openness with regard to public records.”  Id. ¶55.

Wisconsin Public Records Law Balancing Test

In John K. MacIver Inst. For Pub. Pol’y, Inc. v. Erpenbach, the Wisconsin Court of Appeals stated:

“When addressing an open records request, a records custodian must make the initial decisions on whether a requested item is a “record” and whether any statutory or common law exceptions to disclosure apply.  If the custodian determines that the item is a record and no exceptions apply, the custodian must then conduct a balancing test to “weigh the competing interests involved and determine whether permitting inspection would result in harm to the public interest which outweighs the legislative policy recognizing the public interest in allowing inspection.”  If the custodian’s decision is challenged, however, a court must make its own independent decisions regarding these matters, including the balancing test.  “The duty of the custodian is to specify reasons for nondisclosure and the court’s role is to decide whether the reasons asserted are sufficient.”  If the custodian states no reason or insufficient reasons for refusing to disclose the information, the writ of mandamus compelling disclosure must issue.  A court should apply the balancing test “when the record custodian has refused to produce the record, in order to evaluate the merits of the custodian’s decision.”  Where … the relevant facts are undisputed, we review de novo a custodian’s balancing decision of whether the public interest in nondisclosure of the challenged information outweighs the public interest in disclosure.  It is the burden of the party seeking nondisclosure to show that “public interests favoring secrecy outweigh those favoring disclosure.”  Access is only to be denied “in an exceptional case.”

John K. MacIver Inst. For Pub. Pol’y, Inc. v. Erpenbach, 2014 WI App 49, ¶13-14, 354 Wis. 2d 61, 848 N.W.2d 862.

In Gierl, the Wisconsin Court of Appeals ultimately determined that the circuit court did not err in granting summary judgment to Gierl.  The court determined that the custodian of records for the Mequon-Thiensville School District applied the balancing test and specified a reason for nondisclosure; however, because the custodian’s decision was challenged, the court was compelled to make its own independent decision regarding the sufficiency of the custodian’s reason for nondisclosure.  The court determined that since the District was unable to provide concrete evidence as to the veracity of the claim that disclosure of the parent email list would cause a “chilling effect” in communication between the District and District parents, the reason for nondisclosure was insufficient.  The court further pointed out that the District had routinely used the list of parent email addresses for purposes outside of the scope of regular district communication, those which the circuit court judge described as “community outreach”.  This usage reduced the public interest of maintaining the privacy of the list of parent email addresses.  The court acknowledged that the public interest in maintaining the privacy of the list of parent email addresses would be more compelling had the list been used exclusively for communications having to do with school-related information such as school closures, changes to bus routes, etc.

Conclusion

This case stands as a reminder of both the presumption of access to public records, as well as the reality of reviewing courts’ independent review of a public entities’ application of the balancing test.  Also, it points out that the character of usage matters, such that using parent contact information for purposes beyond communications related to student matters has the impact of changing the nature of the confidentiality.  In many cases, school districts are already using technology that render a decision such as this to be moot, such as delivering communications through systems such as PowerSchool, InfiniteCampus, etc. Districts may look for more opportunities to reduce the amount of personal contact information used in order to communicate with parents to maintain confidentiality or to limit the usage if personal contact information to only those instances that involve student related matters.

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

LaKeisha D. Haase

LaKeisha D. Haase

lhaase@law-rll.com | 920.718.7916