Does an e-mail message sent to or by a municipal employee or official constitute a public record under the public records law?

Yes, in most cases. Wisconsin’s public records law broadly defines “record” to include any material on which written, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved that has been created or is being kept by an authority (e.g., municipal department, official or office). “Record” excludes materials that are purely the personal property of the custodian and are unrelated to his or her office. Wis. Stat. § 19.32(2).

The substance of an email determines whether it is a record – not its location. Accordingly, an email is a public record subject to disclosure when the message content relates to government business/activities, unless an exemption applies. This is true regardless of whether the email is sent from a personal or government account or stored on a personal or government device.

Purely personal emails sent or received by employees or officers on an authority’s computer system, evincing no violation of law or policy, are generally not subject to disclosure in response to a public records request. However, personal emails may take on a different character, becoming subject to potential disclosure, if they are used as evidence in a disciplinary investigation or to investigate misuse of government resources. A connection would then exist between the personal content in the emails and a government function, such as a personnel or ethics investigation.

Emails and other electronic records of an authority must be retained for the required time period, which is generally seven years in the absence of a records retention ordinance establishing an alternative approved retention period.

(rev. 7/19)