Public Records FAQ 5

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 some cases. A “record” under the public records law is broadly defined to include any material on which written, printed, visual or electromagnetic information is recorded or preserved which has been created or is being kept by a municipal employee, official or office. Wis. Stat. sec. 19.32(2). Clearly, e-mail constitutes a record subject to the public records law.

However, the substance of a record determines whether it is public or not. The public records law does not apply to purely personal records kept by an authority. Thus, an e-mail is a record subject to disclosure only if the message content relates to government business/activities.

In general then, purely personal e-mails sent or received by employees or officers on an authority’s computer system, evincing no violation of law or policy, are not subject to disclosure in response to a public records request. However, personal e-mails 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 then would exist between the personal content of the e-mails and a government function, such as a personnel or ethics investigation.

E-mails and other electronic records of an authority should be retained as long as any written communications are required to be retained, which is generally seven years in the absence of a records retention ordinance establishing a reduced retention period.