Dec. 19, 2022 – The Wisconsin public records law compels a school district to disclose a list of parent email addresses used to communicate about administrative matters and community issues, the Wisconsin Court of Appeals has ruled.
In Gierl v. Mequon-Thiensville School District, 2021AP2190 (Dec. 7, 2022), the Court of Appeals District II held that under the public records law’s balancing test, the prospect that disclosure of the list would chill communication between the district and the parents did not weigh in favor of nondisclosure.
A Webinar About Race
On June 24, 2020 the Mequon-Thiensville School District (District) sent an email inviting parents to participate in a webinar about privilege and race. Mark Gierl asked the District to provide him with the email address list that was used to send the webinar invite.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
The District replied with a letter that said the invite was sent to “all parents and staff members.” The District gave Gierl a list that contained employee email addresses to which the invite was sent but not the parents’ email addresses.
In the letter to Gierl, the District cited a letter written by an assistant attorney general (AAG) with the state Department of Justice in 2010.
In that letter, the AAG wrote that under the balancing test required before disclosing a record under the state public records law, it wasn’t unreasonable for the South Milwaukee School District to deny a request for a list of parents’ email addresses, because the disclosure of the list would discourage parents from providing their email addresses to the school district, which would inhibit communications between the district and the parents.
Gierl filed a petition for a writ of mandamus in Ozaukee County Circuit Court, and asked the court to order the district to disclose the list of the parents’ email addresses. The circuit court granted summary judgment for Gierl.
The District appealed.
Email List is Actual Record
On appeal, the District argued that under Wis. Stat. section 19.31,the parents’ email addresses were not related to the “affairs of government and the official acts of those officers and employees who represent them,” and therefore were not subject to the public records law.
Writing for a three-judge panel, Judge Mark Gundrum explained that the district’s argument was unpersuasive.
Citing the circuit court’s ruling, Gundrum pointed out that the District used the list of parents’ emails multiple times between July 1, 2018 and June 30, 2020 to communicate about school closures, bus routes, reminders about enrollment, as well as to encourage voting on a referendum and to send a newsletter that included items on the District’s legislative committee, a workshop on serving on the school board, and other community outreach matters.
The District also argued that it had told Gierl who it had sent the webinar invite to. But, Judge Gundrum explained, that wasn’t enough under the public records law.
“That response only identifies the general body of persons; it does not identify the specific individual’s email contact information the District was using,” Gundrum wrote.
Judge Gundrum concluded that the list of email addresses was the actual record.
The District’s argument that releasing the email list to Gierl would have a chilling effect on communication between the District and parents was speculative, Gundrum noted.
After all, Judge Gundrum wrote, the District in 2015 released a list of parents’ email addresses to the former mayor of Mequon, “yet no chilling effect was observed following that release.”
“We agree with the circuit court that the speculative chilling effect is insufficient to ‘overcome the “strong presumption of complete openness” with regard to the emails,’” Gundrum wrote.
Gundrum also cited a Wisconsin Supreme Court decision, Hathaway v. Joint School District, 116 Wis. 2d 388, 342 N.W.2d. 682 (1984). In that case, the supreme court held that the public records law compelled the disclosure of a list of parents’ names and physical addresses.
Spam Concerns Misplaced
The District also argued that if it turned the email list over to Gierl, he could send parents spam mail full of his political ideology.
But, Judge Gundrum wrote, that argument cut against the fact that the District uses the list “to promote and advance the particular ‘community outreach’ issues and positions of District (government) leaders while denying others in the community the opportunity to utilize the email addresses to share differing viewpoints.”
Gierl argued that if the district was concerned about protecting parents from political ideology, it should have confined use of the email list to sending notices about school closure and bus schedules, rather than community outreach issues.
The court of appeals agreed, holding in effect that the District couldn’t have its cake and eat it too.
“The balancing test does not tolerate utilizing taxpayers resources for an ideological or political monopoly,” Gundrum wrote.