In a potentially far-reaching decision, the Wisconsin Court of Appeals on April 9, 2014, put individuals, corporations, and others on notice that when they email a public official, their identities and email addresses are likely to be discoverable upon request.
The case, The John K. MacIver Institute for Public Policy, Inc. et al v. Erpenbach, No. 2013AP1187, arose out of State Sen. Jon Erpenbach’s redaction of last names, email addresses, and other identifying information when responding to a public records request for correspondence related to the collective-bargaining legislation that became Act 10 – then being hotly debated in the Legislature and throughout Wisconsin. The request sought emails sent to Sen. Erpenbach from government email accounts, but, even 8 months after Act 10’s enactment, he refused to provide the redacted information. The requester asked a circuit court to compel full disclosure. The court denied that request, holding it was required to defer to Sen. Erpenbach’s judgment as the custodian of the records.
On appeal, Sen. Erpenbach made several arguments, including that the redacted information was “purely personal” and not subject to disclosure. Throughout, he also emphasized the “unprecedented circumstances” and “nuclear environment” around the Capitol in 2011. He sought heightened deference because of his role as a legislator and the political environment of the time, also suggesting that disclosing the senders’ identities could open them to threats or retaliation.
The Court of Appeals sided with the requester and ordered full disclosure of the emails. Each of the three judges on the panel wrote separately, but they all agreed on the result.
Judge Mark Gundrum’s opinion stressed the importance of Wisconsin’s “strong presumption of complete openness with regard to public records.” He affirmed the courts’ important role, noting they were more likely to offer “disinterested” analysis of the issue than would records custodians themselves (including legislators), who “personally may view a records request as being favorable or unfavorable to his or her own interests or those of someone close to him or her.” To Sen. Erpenbach’s arguments that, though the emails were sent for the “purpose of influencing the lawmaker’s position on public policy,” the identifying information had “no connection” to his “official acts” or his “government function” but, rather, was “purely personal” information, Judge Gundrum responded that the “‘who’” and the “from ‘where’” of the emails were of weighty public import, not a merely personal concern. “Whether government employees, another public official, a lobbyist, the CEO or employees of a corporation, the president or members of a union, or other individuals supporting or opposing a particular interest, awareness of who is attempting to influence public policy is of significant interest to the public,” specifically in “performing its important government oversight function.” Likewise, the apparent source of the communication – the entity, the likely interest or region of the state represented, for example – carries similar public import and weighs heavily in the balance. On the other side of the scale, the opinion noted, Sen. Erpenbach had not substantiated his concerns about potential reprisal against the senders, if they were identified.
As a whole, Judge Gundrum’s opinion took the long view, noting that passionate public-policy issues come and go, and rejecting a potential rule for cases involving “contentious” policy matters, since any such rule “would be contrary to the public interest and the presumption of openness.” Those sending the emails had no expectation that the emails would stay private (much less a reasonable one), and the opinion approvingly quoted the circuit court’s observation that the term “private” is “oxymoronic with sending an e-mail to a public official concerning a public matter.” Senator Erpenbach failed to meet his burden of showing that the public interests favored nondisclosure over disclosure, so Wisconsin’s “strong presumption of openness” carried the day.
The two other judges’ opinions, called “concurrences,” raise an interesting question about the specific holding of the court in this case, worthy of separate discussion. Judge Paul Reilly’s opinion relied directly on the statutory language and found that “[a]pplication of the public records law is the same whether the record is from George Soros, David Koch, or John Q. Public.” Chief Judge Richard Brown’s opinion expressed fear that the decision, though a correct application of the law, could chill engagement in public discourse and exacerbate anonymous social-media outlets, “the antithesis of civil discourse.” But he, too, thought that allowing Sen. Erpenbach’s redactions would place too much discretion in the records custodians and lead to the “disaster” of outcomes actually or seemingly depending upon politics.
Chief Judge Brown’s opinion summed up what may be the case’s ultimate lesson for Wisconsin citizens, companies, and others: “It puts all citizens on notice that when they communicate their political views to their legislators, they should be prepared to see those communications, with their names attached to them, publicized by whatever means a requester might wish—newspaper, press release, searchable online database, etc.” Until the Supreme Court provides clarity, or until the Legislature changes the law, all should heed this warning.