The People’s Business Cannot Be Redacted: The Wisconsin Court Of Appeals Directs A State Legislator To Release Withheld Email Information

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...