Schill v. Wisconsin Rapids School District: Update

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August 3, 2010

You have likely heard of the Wisconsin Supreme Court’s decision issued on July 16, 2010, in Schill v. Wisconsin Rapids School District, 2010 WI 86 (7/16/10). In this decision, the Supreme Court ruled that Wisconsin’s Public Records Law does not require the disclosure of employee personal e-mails that are sent and received by a public employer’s computer system. The Supreme Court’s decision was not unanimous. It was issued by a five to two vote, with two Justices concurring and one Justice dissenting. An alert prepared by our firm discussing the case in detail can be found by following this link: Wisconsin Supreme Court Rules That Personal E-mails are Not Subject to the Public Records Law.
 
Recently, Wisconsin Attorney General J.B. Van Hollen issued a memorandum setting forth guidance as to the practical impact of the Supreme Court’s decision. (Attorney General’s guidance). The guidance is helpful in that it states the opinion of the Attorney General’s office with regard to the meaning and practical effect of the Supreme Court’s decision, and what actions a record custodian may be required to take to ensure compliance with the decision.
 
A conclusion of a majority of the Justices in the Schill decision was that e-mails are, in general, public records. Even so, not all e-mails are subject to release and, in accord with the Supreme Court’s ruling, purely personal e-mails are not “records” subject to release. In light of those conclusions and the Supreme Court’s clarification of the Public Records Law, public employers should update record retention policies (such as the type of e-mail correspondence which will be retained, the time period they will be retained, and the means of doing so.)
 
Please feel free to contact any of the attorneys in the Employment, Labor & Benefits Practice Group of Ruder Ware if you have any questions in regard to the opinion or the attached guidance.

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