It was apparent in early 2004 to anyone attending the monthly meetings of the Ozaukee County Board that supervisors were quite familiar with Internet technology, thank you.
It was obvious because they routinely discussed county business via e-mail prior to county board meetings. Supervisors would refer to their online conversations during public debate. Some would occasionally print and make copies of their e-mail missives and distribute them to other supervisors - and sometimes even reporters.
There even were instances where supervisors angrily complained that colleagues were voting differently than how they had pledged in their e-mails.
Court rulings have consistently affirmed that e-mail and other electronic records must be released to the public on request. But there is little clarity in law or practice as to how long these records must be kept, what systems ought to be in place for storing and retrieving them, and whether and when e-mail exchanges may violate the Open Meetings Law.
In Ozaukee County, a check by the Milwaukee Journal Sentinel showed that even though supervisors' private e-mail addresses were listed on the county Web sites and in its official directory, no system existed for storing those e-mails.
As a result, the newspaper requested under the state open records law copies of all e-mail communications between supervisors going back several months.
Most of those e-mails no longer existed, but the newspaper was able to acquire dozens that had been saved by supervisors on their personal computers.
A review of the e-mails showed that outside of the public eye, supervisors routinely discussed issues such as:
- Who the next county board chairman should be.
- Where to cut the county budget.
- How to change the county administrative coordinator's job description.
- How to deal with the county nursing home's operating deficit.
They even discussed whom on the board had the most irritating personality. In many instances, the same e-mail was sent to many supervisors or a single e-mail between two supervisors was forwarded to others.
Some Ozaukee County supervisors reacted angrily the paper's open records request and to the stories that followed. Some accused the newspaper of wanting to peer into their private computer files. Some argued that officials were merely taking advantage of technology to streamline the business of government and were doing nothing illegal.
But, in response to a request by the Journal Sentinel to weigh in on the matter, Assistant Attorney General Monica Burkert-Brist, head of the Attorney General's Public Integrity Unit, stated flatly that government officials should not be using e-mail to carry on private debate and discussion of public business.
That give-and-take "belongs at a public meeting subject to public scrutiny," Burkert-Brist wrote in a letter to the Journal Sentinel. "The underlying principle is pretty simple. E-mail is a valuable, time-saving device for quick and incidental communication, but it should not be used to carry on private debate and discussion."Burkert-Brist was addressing the issue generally since a formal complaint against the county had not been made, and a full investigation had not been conducted.
Ozaukee County Administrator Tom Meaux said, "Everyone has been more sensitized to this issue" as a result of the news coverage. Now, a year later, Ozaukee County might be considered as a model for how to handle government business by e-mail.
Supervisors still use private e-mail providers, but copies of county-related missives are automatically sent to an archive that can be accessed by the public through a computer terminal in the Ozaukee County Clerk's office.
In addition, the county Web page that contains the county board roster includes a notice that all e-mails sent to supervisors are public records.
County ordinances have been upated to reflect the changes. A recent check at the terminal showed online conversations between supervisors on public transit, courthouse security, the county jail and the quality of customer service at one of the county golf courses. In addition, an annual primer on open government for Ozaukee County officials now also includes a session on the proper treatment of e-mails.
Officials statewide need to be reminded that e-mails, including government-related communications on their home computers, are open records that must be made more accessible to the public.
Benson is a Milwaukee Journal Sentinel reporter. Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council, a group devoted to protecting public access to meetings and records.