Open Records and SSCC Email

Recent events have reminded many SSCC members that their University email is subject to Open Records requests. This article will introduce some of the basic concepts of Open Records law and discuss technical aspects of SSCC email that are relevant to it.

Please keep in mind that SSCC staff are neither records managers nor lawyers. This article includes links to authoritative sources on Open Records law and how to comply with it; for more information please refer to UW Records Management or contact the University Records Officer.

Open Records Law

As a public institution, the University of Wisconsin-Madison is subject to Wisconsin's Open Records law. The University has created training materials to help you understand your obligations under the law and what would need to be released in response to an Open Records request. The following discussion is based on that material.

What is a Record?

State law (Chapter 16.61) defines records as "all books, papers, maps, photographs, films, recordings, or other documentary materials, regardless of their physical form or characteristics, produced or received by any state agency or its officers or employees in connection with the transaction of public business." While this definition was written before email was in use, it is very broad and has been held to include email.

If you work for the University, then your job duties are "public business" and information related to your job duties will generally be a public record. "In other words, regardless of how you create or receive the information, if the information is related to your work for the University, and it is memorialized or recorded in any format, then it is a public record." (Public Records Fundamentals) Thus, with certain exceptions, email related to your job duties is a public record. The inverse, that email not related to your job duties is not a public record, is more controversial.

Record Retention

Public records must be retained for an appropriate period. The appropriate period depends on the nature and table of the record, and is specified by Records Schedules which have been created by the University Records Officer and approved by the Wisconsin Public Records Board. Most SSCC email will fall under the Business Communication schedule. It defines two types of business communication: "Routine" and "Transitory."

Routine communication is substantial, but does not "set forth university policies, guidelines, procedures, or directives." Routine communication should be retained for "six months after a business activity or project is completed."

Transitory communication "has no business value after the information contained in the message has been conveyed or superseded, or the event to which the message is related has occurred." Transitory communication is the kind of thing you would have talked about in person if email weren't so convenient. The retention instructions for transitory communication are "Retain for seven days or destroy when obsolete because the communication has been superseded or the related event has transpired." (See the schedule for more details.)

Other records fall under different schedules. For example, the Student Records schedule specifies that "Faculty records of grades given in whatever form" must be retained for five years. For more information see the list of General Records Schedules.

Any records that are the subject of an Open Records request must be retained regardless of their regular schedule until the request has been completed.

Open Records Requests

If you receive an Open Records request, you should contact the Office of Administrative Legal Services (OALS) for assistance. They will help you determine what should be released. While "[t]he law specifically declares that it is the public policy of this state that all persons are entitled to the greatest possible information" the law also "identifies certain information that cannot be released." (OALS Public Records web page) There are exceptions to the definition of a record, legal requirements to protect privacy such as FERPA and HIPAA, and other public interests that must be balanced against the public interest in disclosure. Former Chancellor Biddy Martin said the following on releasing the results of an Open Records request for a faculty member's email:

I announced that the university would comply with the law and, as we do in all cases, apply the kind of balancing test that the law allows, taking such things as the rights to privacy and free expression into account. We have done that analysis and will release the records later today that we believe are in compliance with state law.

We are excluding records involving students because they are protected under FERPA. We are excluding exchanges that fall outside the realm of the faculty member's job responsibilities and that could be considered personal pursuant to Wisconsin Supreme Court case law. We are also excluding what we consider to be the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it. Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas. (Chancellor’s message on academic freedom and open records, see Senior University Legal Counsel John Dowling's response to the requestor for more details about what was excluded.)

The Wisconsin Supreme Court case law she refers to is almost certainly Schill vs. Wisconsin Rapids where the Supreme Court ruled 5-2 that the Wisconsin Rapids school district should not release the personal emails teachers sent or received using their school district email accounts in response to an open records request. However, it is a complicated decision. Three justices ruled that personal emails on government accounts are not public records, with reasoning similar to that found in the University's training materials. Two ruled that they are public records, but that the public interest in giving employees privacy overrides the public interest in disclosure. Two justices ruled that personal emails on government accounts are public records and should be disclosed. On the other hand, all parties agreed that there is no duty to retain personal emails.

Other Legal Requests for Email

Email can also become evidence in trials or other legal proceedings, and can be subpoenaed or demanded in discovery. In these cases it does not matter whether a given message is a record under Open Records law or not.

Deleting SSCC Email

Deleting email that either is not a record or no longer needs to be retained makes responding to Open Record requests much easier. Deleting unneeded email also saves disk space and improves email performance. However, selecting a message and pressing Delete does not necessarily make it disappear.

Deleted Messages and Your Email Program

Most email programs recognize that people sometimes delete messages by mistake and provide a way to recover deleted messages for a time, for example by moving it to a Trash folder rather than deleting it immediately. However, if a message is available in a Trash folder it must still be produced in response to an Open Records request. Thus you need to be aware of what your email program actually does when you press Delete.

Thunderbird

Thunderbird provides several options, which you can see by clicking Tools, Account Settings, Server Settings and looking under When I delete a message. The default is Move it to this Folder: Trash. SSCC automatically deletes messages from Trash folders after 30 days (see Email Storage Limitations). You can make sure it is deleted sooner by checking Empty Trash on Exit. The next option is Just mark it as deleted. If you select it, deleted email is not actually removed until you "expunge" your Inbox. However, this is what Thunderbird actually does behind the scenes regardless of the setting you choose--the other settings just hide messages that are marked as deleted. Thus it's very important that you leave Clean up ("Expunge") Inbox on exit checked or email will never actually be deleted from your Inbox. The third option, Remove it immediately, is ideal for mass deletions of old messages where you're reasonably confident you won't change your mind.

Most other email programs provide similar options.

SSCC Webmail

By default SSCC Webmail moves messages to your Trash folder when they are deleted, and completely removes them from your Inbox at the same time. You can change this behavior if you want to by clicking Settings, Server Settings.

Deleted Messages and SSCC Backups

Each night, all messages on the SSCC email server except those in Trash folders are backed up. These backups are retained for one month and then deleted (the tapes are reused). If someone files an Open Records request for email, email that is available on backups must be produced even if the original has been deleted. Note that WiscMail (@wisc.edu addresses) and other email providers have very different backup policies.

Scenarios

  • You receive an email and delete it. Your email program is set to move deleted email to Trash, and not to delete trash automatically (the defaults). The email is available in your Trash folder for 30 days, and then it is automatically deleted by the SSCC.
  • You receive an email and delete it. Your email program is set to remove deleted messages immediately. The email is no longer available.
  • You receive an email and delete it the next day. Because it was on the server when nightly backups were created, it is available for one month from the SSCC backup tapes, and may also be available in your Trash for 30 days.
  • You receive an email and delete it several weeks, months, or years later. It is available from the SSCC backup tapes for one month from the night before it was deleted, and may also be available in your Trash for 30 days.

We emphasize that you should not delete email that constitutes a record that must be retained. If you have any questions about what must be retained, or about Open Records in general, please contact UW Records Management.

More Information

Last Revised: 4/6/2011