Court of Appeals Rules Private Email Addresses May Be Subject to Open Records Requests Without Evidence of Parent Concerns
In early December, the Wisconsin Court of Appeals issued a decision that addressed a records custodian’s obligation to produce a list of private citizens’ email addresses in response to an open records request under Wisconsin’s Open Records Laws, chapter 19 of the Wisconsin Statutes. The decision, Gierl v. Mequon-Thiensville School District, was recommended for publication. If it is indeed selected for publication, the decision would be binding precedent in Wisconsin.
The case arose when the Mequon-Thiensville School District denied Mark Gierl’s open records request for a list of email addresses to which the District sent a webinar invite. The District responded to Gierl’s request by sending a letter indicating that the webinar invitation was sent to “all parents and staff members” of the District and enclosing a list of staff email addresses. The District did not include a list of parent email addresses and told Gierl “the District does not believe that there is a statute or case explicitly requiring or prohibiting disclosure of the list of parent email addresses, and as such, we have decided to respectfully decline your request for parent email addresses.” The District also referred to a 2010 Attorney General letter in its response, which it cited for the proposition that “it was not unreasonable under the Wisconsin public records law balancing test for the District of South Milwaukee to deny a request for parent e-mail addresses on the district-stated basis that disclosing parent e-mail addresses would inhibit parent-school communication by discouraging parents from providing their e-mail addresses.” After Gierl’s request was denied, Gierl filed a writ of mandamus to compel release of the list of parent email addresses.
Arguing in favor of withholding the records, the District first asserted that the list of parent email addresses did not “relate to the ‘affairs of government and the official acts of those officers and employees who represent them’” such that the presumption of disclosure stated in Wis. Stat. § 19.31 was inapplicable. The circuit court and court of appeals both rejected that argument, noting that the District utilized the list a number of times between 2018 and 2020 for both school and community communications, and that the public has an interest in knowing who the District is attempting to influence with its communications.
The District next asserted that the balancing test favored withholding the list of email addresses because releasing the list of email addresses would have a chilling effect on parents’ willingness to provide their email addresses to the district and would consequently “stifle District-parent communications.” Both the circuit court and court of appeals flatly rejected the District’s argument and pointed to the complete lack of evidence to support the District’s speculation that any chilling effect would occur. Further, both courts noted that a similar list of parent email addresses had been released to a requestor in 2015 but no such chilling effect occurred after disclosure; there was no evidence that the District received any feedback whatsoever from any parents after that list was previously disclosed and there was no evidence that any parent had come forth after that disclosure to request that their information not be disclosed in future records requests. Accordingly, the court of appeals concluded that the speculative chilling effect could not overcome the strong presumption of disclosure under the law.
Both the court of appeals and circuit court also addressed a prior court of appeals case, Hathaway v. Joint School District, which permitted the disclosure of a computer-generated list of the names and addresses of parents with children in that school district. The court of appeals, citing the circuit court decision, noted that “unwanted e-mails resulting from release of the parent e-mail list ‘is far less [intrusive] than … someone perhaps calling you on your phone or even more so showing up on your doorstep,’ which could result from the release of parent phone numbers and home addresses that the Hathaway court ordered released under the public records law.” Both Courts noted that unwanted emails were a daily occurrence for people and preventing potential unwanted spam emails was not a sufficient justification to withhold the private email addresses of parents.
It is important to note that Gierl does not stand for the proposition that private citizen email addresses must be disclosed as a matter of law in every open records request. The case merely explains and clarifies that, if a records custodian intends to withhold that information or record pursuant to the balancing test, there must be concrete evidence strongly supporting the custodian’s position, rather than speculation or policy arguments. However, future mandamus challenges related to private citizen information will no doubt cite to Gierl in support of arguments for disclosure.