Wisconsin has both a Public Records Law (Wis. Stat. ss. 19.31-19.39 (2003)), and an Open Meetings Law (Wis. Stat. ss. 19.81-19.98. Both are designed to ensure that citizens will have access to government actions in communication and deliberation. These laws represent the goal of an open Wisconsin, committed to good and open, limited and responsible government.
Here are their respective Declarations of Policy:
Public Records Law:
In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be 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. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall 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.
Open Meetings Law:
(1) In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.
(2) To implement and ensure the public policy herein expressed, all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law.
(3) In conformance with article IV, section 10, of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with this subchapter.
(4) This subchapter shall be liberally construed to achieve the purposes set forth in this section, and the rule that penal statutes must be strictly construed shall be limited to the enforcement of forfeitures and shall not otherwise apply to actions brought under this subchapter or to interpretations thereof.
Unfortunately, both laws may be circumvented, intentionally or accidentally, through the use of e-mail. In some cases, officials may try to conduct business through e-mail in a way that contravenes the likely limits of the Open Meetings Law. That’s a point that Greg Peck makes in post from this June, entitled, When will officials heed warnings about e-mails?.
Peck writes that
It didn’t have to be this way.
I checked my files. I’ve served as the Gazette’s Opinion page editor for more than 7 years, and I’ve written repeatedly about the risks government officials take when they discuss city business by e-mail.
One city council member discussing business with one other person wouldn’t violate the state’s open meetings law. A series of such e-mails or use of a forwarding function that means a majority of council members are discussing governmental business could break the law because they’re creating a so-called “walking quorum,” essentially a public meeting that requires public notice and the chance for residents to attend.
Yet if anyone in Lake Geneva was paying attention to warnings about e-mails, you sure wouldn’t know it from the countless e-mails between elected officials and groups opposed to Robert Hummel’s 710-acre development plan.
The e-mails have become central to a $99.8 million federal lawsuit that Hummel and his development group have filed against the city. It claims the defendants “conspired among themselves and with others to orchestrate and carry out a fraudulent plan or scheme to prevent the orderly and permissible development of the property….”
It will be up to a court to decide if these e-mails broke the law and/or the Hummel group deserves monetary damages.
He’s right. It’s one way that officials may use new technology like email or instant messaging to achieve old ends — concealing activities that are truly meetings in scope from citizens’ participation under the Open Meetings Law. (As Peck, a court will have to sort out the issues the the Lake Geneva case.)
There’s another way to use email, to circumvent Wisconsin’s Public Records law: use private email to conduct official business, and keep those private accounts aways from a designated custodian of record. Although many municipalities have ways to retrieve all of the emails and other electronic discussing a certain topic, a private Yahoo! or AT&T or Charter account, for example, cannot similarly be archived and search by a custodian of record.
The best one can do is merely to trust — without sound means of verification — that an official will keep and provide such email on request. There’s no safeguard against either intentional or accidental withholding or deletion of email involving public policy (as there would be through a city’s own email archiving devices).
That’s why a community that allows private email for public business departs from sound policy.