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E-Mail: Important Considerations for Local Officials By Claire Silverman, Legal Counsel, League of Wisconsin Municipalities, originally published in The Municipality, February 2001 Although the use of e-mail as a way of communicating is relatively new, it has quickly become a routine form of communication for many. E-mail offers many advantages over communication by telephone or "snail mail." The biggest advantages are that it offers the ability to send information to a single person or a very large number of people almost instantaneously, any time of day or night, regardless of the day of the week, at no more than the cost of a local phone call. It also provides an accurate record of who said what, and when they said it. These attributes make e-mail an attractive way to communicate with others. However, local officials need to bear two important things in mind as they use e-mail. First, governmental bodies are subject to Wisconsin's open meetings law. Second, local governments are also subject to Wisconsin's public records law. Local officials who use e-mail to communicate with others about government business would be wise to keep these two laws in mind when they use e-mail to communicate regarding municipal business. This Comment seeks to explain briefly how the use of e-mail might trigger the requirements of these laws. Such knowledge will allow officials to avoid running afoul of these laws, and make informed decisions regarding whether e-mail is an appropriate way to communicate regarding certain matters. E-Mail and the Open Meeting Law Wisconsin's open meeting law requires that all meetings of governmental bodies be preceded by public notice and be open and accessible to the public except as otherwise permitted by law.1 Although there are no Wisconsin court decisions addressing whether the use of e-mail by members of a governmental body can constitute a meeting which triggers the requirements of the open meeting law, the writing is on the wall. If faced with the issue, the League believes Wisconsin courts will have no difficulty concluding that the use of e-mail, by a sufficient number of members of a governmental body, constitutes a meeting and triggers the various requirements of the open meeting law. The open meeting law defines a "meeting" as the "convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body."2 If one-half or more of the members of a governmental body are present, the meeting is presumed to be for the purpose of exercising the duties delegated to or vested in the body.3 That presumption may be rebutted by competent evidence to the contrary. However, the requirements of the open meeting law can also be triggered when less than an actual quorum is present or participating. The Wisconsin Supreme Court has held that the open meeting law applies whenever members of a governmental body meet to engage in government business, whether it's for purposes of discussion, decision or merely information gathering, if the number of members present are sufficient to determine the parent body's course of action regarding the proposal discussed at the meeting. See State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d 77, 398 N.W.2d 154 (1987). This number can be the number sufficient to pass a proposal or the number necessary to defeat a measure, termed a "negative quorum." In Showers, the court recognized that members of a governmental body can violate the open meeting law by participating in what is called a "walking quorum." A walking quorum is a series of gatherings among separate groups of members, each less than quorum size, who agree, tacitly or explicitly, to act and vote in a certain manner in numbers sufficient to reach a quorum. Thus, members of a governmental body can violate the open meeting law by communicating regarding city or village business if there is communication amongst a sufficient number of the members. In an informal (i.e., not published) attorney general opinion,4 the attorney general opined that the University of Wisconsin Athletic Board had probably violated the open meeting law by using e-mail to approve proposed compromise language regarding a contract with Reebok. The Athletic Board had considered the proposed contract at a public meeting. The minutes from that meeting indicated that the Athletic Board would approve the proposed contract if Reebok agreed to four amendments specified in the minutes. The minutes further indicated that the board's chair would contact board members as soon as possible, to gauge board reaction, if Reebok did not agree to any of the four amendments or proposed compromise language. The minutes noted that the chair might call a special meeting if reaction was divided, but that he would consider the amendments approved without an additional meeting being required if reaction largely supported the changes. When Reebok proposed compromise language, the chair e-mailed each of the board members asking them to let him know as soon as possible if they opposed signing the contract as a result of the compromise language. The chair subsequently e-mailed all members of the board to let them know that he had heard from each of the members and, given the members' unanimous support of the amended language, had informed the Chancellor's Office that the Athletic Board supported the contract as amended. It's worth stating that there's nothing special about e-mail that makes its use by a sufficient number of members of a body a violation of the open meeting law. The above discussion applies equally to the use of telephone or other forms of communication. The necessary ingredient for violation is communication amongst a sufficient number of members. The penalty for violating the open meeting law is not less than $25 nor more than $300 for each violation.5 Liability is personal and is not reimbursable by the municipality,6 so protect your pocket and, more importantly, protect Wisconsin's strong tradition of open government and public confidence in the integrity of local government. E-Mail and the Public Records Law Although Wisconsin case law does not address the use of e-mail in the context of Wisconsin's public records law, it is virtually certain that Wisconsin courts would conclude that e-mails are public records under the law. Wisconsin's public records law defines "record" broadly. A "record" is "any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority...."7 It also includes records which are not required to be maintained if they are in the possession of an officer.8 However, materials must have sufficient connection with the function of the office to qualify as a public record.9 "Authority" is defined to include elected officials, local offices, agencies, boards, councils, commissions, committees, departments and any other public body corporate and politic created by constitution, law, ordinance, rule or order, or any subunits of any of the foregoing.10 Although the law may not require that e-mails by individual officers or members of a governmental body be kept or maintained, e-mails clearly fit within the definition of "record" and elected local officials clearly fit within the definition of an "authority." Thus, to the extent that an e-mail is maintained or kept on a computer, or in the possession of an official, it is subject to request under the public records law and is probably subject to the limitations imposed by the public records law on the destruction of records. In particular, local officials should be aware that documents which are the subject of a request for inspection may not be destroyed.11 Where the content of an e-mail makes it a record that must be maintained, custodians should be aware that it may not be enough to print out hard copies and that it may be necessary to preserve the e-mail in its electronic format. In a federal case where it was determined that e-mails constituted records under the Federal Records Act,12 the court noted that attempting to preserve the record by printing out a hard copy of the record did not satisfy the preservation requirements of the Federal Records Act because the hard copy would not necessarily contain all the information contained in the electronic copy. For example, the hard copy might not indicate the time the e-mail was sent, the time it was received which would be noted if the sender had requested what is termed an acknowledgment, or all the people the message was sent to if the message was sent to a list serve or a large number of persons. Although there are currently more questions than answers regarding how Wisconsin's public records law applies to e-mails of local officials regarding municipal business, one thing is clear. Local officials should anticipate that any e-mails relating to official business and being kept or maintained on a computer or elsewhere, are likely records which can be requested under Wisconsin's public records law. Endnotes ? PREVIOUS ARTICLE | FRONT PAGE | NEXT ARTICLE |
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