Although some Wisconsin cases have upheld limitations on the release of home addresses of public employees even before the creation of Wis. Stat. § 19.36(10)(a), these cases illustrate the need for a particularized showing that the public interest supports withholding the records. See, e.g., Morke v. Record Custodian, 159 Wis. 2d 722, 465 N.W.2d 235 (Ct. App. 1990) (list of names, addresses and phone numbers of prison employees withheld from disclosure based on the institution’s interest in ensuring safety inside and outside the prison boundaries and in encouraging persons to serve as prison employees); State ex rel. Journal/Sentinel, Inc. v. Arreola, 207 Wis. 2d 496, 558 N.W.2d 670 (Ct. App. 1996) (trial court order releasing records relating to the use of deadly force by police officers modified to require redaction of the individual officers’ home addresses based on privacy interests and public safety concerns). Cf. U.S. Dept. of State v. Ray, 502 U.S. 164, 176 n.12 (1991) (emphasizing that disclosure of a list of names and other identifying information is not inherently or necessarily a significant threat to the privacy of the individuals on the list; the significance or insignificance of the threat to privacy depends upon the characteristics revealed by virtue of being on the particular list and the consequences likely to ensue). Home Telephone Numbers. There is a less well-developed body of precedent on the question whether lists of home telephone numbers are subject to disclosure under the public records statute. However, Morke demonstrates that personal telephone numbers can be withheld under the balancing test based upon a particularized showing of possible harm to the public interest, including concern for safety and institutional security. Id., 159 Wis. 2d at 72627. See generally State ex rel. Pflaum v. Psych. Examining Bd., 111 Wis. 2d 643, 646, 331 N.W.2d 614 (Ct. App. 1983) (in affirming discovery order requiring disclosure of names, addresses and phone numbers of particular individuals, the court observed that disclosure did not implicate those persons’ constitutional right to privacy); cf. Wisconsin Professional Police Ass’n v. PSC, 205 Wis. 2d 60, 70 n.6, 555 N.W.2d 179 (Ct. App. 1996) (citing factual evidence to support commission finding that there is no general societal expectation or norm that a person placing a telephone call has the right to remain anonymous). [=OAG 2-03, 4-5] E-mail addresses. It is fair to say that courts and legislatures are currently struggling to apply existing statutes, including public records and freedom of information statutes, to the exploding technology of the Internet. At this juncture, there are no Wisconsin cases directly addressing whether a distribution list of e-mail addresses may be withheld from disclosure under the public records law based on concern for the privacy rights of those persons to whom the email addresses belong, nor has our research discovered any cases from other jurisdictions that analyze the issue. Cf. n.2, above, citing Reno, 521 U.S. at 855 n.20. Furthermore, courts in other jurisdictions appear to treat privacy concerns with differing degrees of respect, depending on whether the basis for the claimed right of privacy is statutory or constitutional. In Wisconsin, however, the statutory right of privacy does not directly affect the duties of record custodians based on Wis. Stat. § 895.50(3). Assuming the courts treat e-mail address lists consistently with the lists of names, street addresses and telephone numbers, it is likely that disclosure of e-mail distribution lists will be required, absent a specific statutory exception or a showing of particularized harm to the public interest from release of such records. Cf. Morke, 159 Wis. 2d at 726-27. The Committee has also asked about the application of the Woznicki and Teachers’ Ed. Ass’n cases to the mailing and distribution lists at issue here, assuming the record custodian determines that such lists are subject to disclosure in the first instance. In those cases, the Wisconsin Supreme Court has held that a public employee has the right to be notified and to seek judicial review of a custodian’s decision to disclose information that may implicate the privacy or reputational interests of that employee. See Woznicki, 202 Wis. 2d at 192-95 (records held by the district attorney); Teachers’ Ed. Ass’n, 227 Wis. 2d at 782, 798-99 (extending Woznicki remedy to all cases implicating the privacy or reputational interests of an individual public employee, “regardless of the identity of the record custodian”).
[=OAG 2-03, 5-6] As restated above, the Committee’s second question is whether the Woznicki and Teachers’ Ed. Ass’n remedy applies to release of mailing and distribution lists compiled by legislators for purposes of communicating with constituents and other private citizens. Based on 2003 Wisconsin Act 47, sec. 4, creating Wis. Stat. § 19.356, enacted since the Committee requested my opinion on this issue, the answer to this question is clearly no. Wisconsin Stat. § 19.356 represents the legislative response to the Woznicki and Teachers’ Ed. Ass’n cases and is expressly intended to limit and clarify the scope of the remedy created in Woznicki. See generally Note of the Joint Legislative Council following 2003 Wisconsin Act 47, sec. 4. Under newly created Wis. Stat. § 19.356(2)(a), an authority is required to provide “record subjects,” see Wis. Stat. § 19.32(2g), created by 2003 Wisconsin Act 47, sec. 1, with written notice of a decision to release records in only three defined circumstances, two of which relate directly to the employment context. See Wis. Stat. § 19.356(2)(a)1. and 3. The remaining instance in which notice is now required is limited to records obtained by an authority pursuant to a subpoena or a search warrant. See Wis. Stat. § 19.356(2)(a)2. Moreover, the statute now expressly provides that notice is not required and that no person is entitled to judicial review of a decision to provide access to a record “[e]xcept as authorized in this section or as otherwise provided by statute.” Wis. Stat. § 19.356(1). Plainly, therefore, the new statute does not require that a Woznicki-type notice be provided in the case of a legislator’s decision to release mailing or distribution lists. I note as well that the limitations in the new statute, Wis. Stat. § 19.356(2), are consistent with postWoznicki precedent, which did not extend the notice requirement beyond the context of privacy or reputational interests of public employees or employees of public contractors. See Kraemer Brothers, Inc. v. Dane County, 229 Wis. 2d 86, 599 N.W.2d 75 (Ct. App. 1999); Atlas Transit, 249 Wis. 2d 242. I conclude, therefore, that if a legislator custodian decides that a mailing or distribution list compiled and used for official purposes must be released under the public records statute, the persons whose names, addresses or telephone numbers are contained on the list are not entitled to notice and the opportunity to challenge the decision prior to release of the record.
Very truly yours,
Peggy A. Lautenschlager
Attorney General
PAL:MMF:mmp
[=OAG 2-03, 6]Opinion Summary: Public Records. Disclosure of mailing and distribution lists discussed. Courts are likely to require disclosure of legislators’ mailing and distribution lists absent a factual showing that the public interest in withholding the records outweighs the public interest in their release. Assuming the custodian decides to release such distribution lists, addressees on the list are not entitled to prior notice and the opportunity to challenge the release under Woznicki and newly created Wis. Stat. § 19.356.
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