United States: 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 "'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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions