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July 16, 2019

6/18/2019 7:30:00 AM
Court says records must be provided electronically, if requested

Richard Moore
Investigative Reporter

In a major open-records decision earlier this month, a state court of appeals has ruled public records which exist electronically must be provided in electronic format when a records' requester asks for them in that format.

That might seem like common sense, but some records' custodians - in particular, lawmakers - have refused to comply, instead printing the records out and charging for copies of each page.

Open records advocates see the maneuver as an attempt to thwart the release of records. In any event, the court decision likely means it's a tactic of the past.

The case stems from a 2016 request by Bill Lueders of the Wisconsin Freedom of Information Council, in which Lueders requested that emails be delivered "in electronic form" and was denied.

State Rep. Scott Krug (R-Nekoosa) had provided the records in printed form which could be purchased. However, the court determined, Krug had no legal or rational basis to deny the request for the records in electronic format.

"Notably, Krug did not refuse to provide the emails to Lueders in electronic form on the ground that they were protected from disclosure on some legal basis," the decision stated. "No such reason was suggested. Rather, Krug effectively indicated that the paper printouts were 'good enough' to satisfy Lueders' second, enhanced open records request. They were not."

It wasn't the first such attempt by a lawmaker. In 2018 the Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit against Milwaukee Democratic state Rep. Jonathan Brostoff over the same issue. Ultimately, Brostoff was forced to release the records in electronic format.

WILL praised Lueders's victory.

"Public officials must stop playing games with record requests," WILL's deputy counsel, Tom Kamenick, said. "Copying an electronic file onto a flash drive or sending it via email is cheap and easy, and there is no reason to waste time and taxpayer resources printing out emails one at a time. We're pleased the court of appeals agrees and we hope Rep. Krug accepts the decision and doesn't continue fighting a hopeless battle."

Records advocates say there's another reason receiving electronic documents in electronic format is important, WILL reported: "The court concluded that the original electronic email contains significant amounts of metadata that is lost when printed out. Because a printout is missing important information from the original record, it is not a 'copy' of the record and does not satisfy a request for an electronic record."

The case

According to the decision, in 2016 Lueders emailed Krug an open-records request to review all citizen correspondence to and from Krug, as well as that of his staff, including phone records, for a four-month period related to and including certain search terms, such as stewardship fund; DNR scientists; state parks; conservation staff; and more.

Krug's office made paper printouts from responsive emails and arranged for Lueders to inspect and/or purchase copies of the printouts, the decision stated. Lueders subsequently did inspect and obtain copies of some of the printouts.

Shortly afterwards, Lueders made another request, this time "to receive the records in electronic form," the decision observed.

"This request is not for printed copies of these records; it is for the records in electronic form, as an email folder, or on a flash drive or CD," Lueders wrote.

Krug refused the request, citing a provision of the open-records law. That provision states that "if a requester appears personally to request a copy of a record that permits copying, the authority having custody of the record may, at its option, permit the requester to copy the record or provide the requester with a copy substantially as readable as the original."

And, Krug replied to Lueders, he had done just that.

"Krug expressed to Lueders that the paper printouts he had previously provided for Lueders's inspection and copying satisfied the requirements of the open records law because they were 'substantially as readable' as the emails themselves," the decision states.

Lueders then went to court, seeking an order that would direct Krug to provide an "electronic, native copy of the requested records." The circuit court sided with Lueders; Krug appealed.

In its deliberations, the appeals court essentially examined Krug's argument that the law required him to provide Lueders with "nothing more" than "copies of records that (were) 'substantially as readable' as the original."

Taking a quick fall

But, the court found, that argument stumbled from the get-go.

"Krug's appeal falters right out of the gate due to his erroneous reading of (the law)," the decision states. "The second sentence of this provision, upon which Krug hangs his entire appeal, reads: 'If a requester appears personally to request a copy of a record ..., the authority having custody of the record may, at its option, permit the requester to copy the record or provide the requester with a copy substantially as readable as the original.'"

The judges said the plain reading of that sentence dictates the language giving the records custodian the option to allow a requester to copy the record or to provide the requester with a copy substantially as readable as the original only comes into play "(i)f a requester appears personally to request a copy of a record."

"The Legislature chose to include this clause, and we are bound by that choice," wrote judge Mark Gundrum, who wrote the decision for the court. "Because there is no dispute Lueders did not 'appear personally' to request the records he sought with either his first or his second, enhanced request, but instead made both requests by email, the 'provid(ing) the requester with a copy substantially as readable as the original' language simply does not apply at all."

To hold otherwise, Gundrum wrote, would require the court to ignore the first clause of that sentence, which the court was not at liberty to do.

Gundrum also observed that the clause in question - "if a requester appears personally to request a copy of a record" - had previously read "if a requester requests a copy of the record."

"The Legislature amended the first clause of this sentence to add 'appears personally,'" Gundrum wrote. "Thus, the Legislature very specifically changed the language from applying to any circumstance in which a requester requests a copy of a record to applying only to the circumstance in which the requester appears in person to request a copy of a record. Without question the Legislature did not intend for this second sentence to apply to situations like that in the case now before us."

But, Gundrum continued, another sentence of the open records law did apply:"(e)xcept as otherwise provided by law, any requester has a right to inspect a record and to make or receive a copy of a record."

"Considering that sentence, the question remains as to whether Lueders's enhanced open records request of July 21, 2016, entitled him to receive an electronic copy of the emails themselves, or whether the enhanced request had already been satisfied by Krug previously affording Lueders access to the paper printouts from the emails." Gundrum wrote.

Mirror image

On that question, Gundrum continued, there were substantial similarities between the Lueders' case and another case, State ex rel. Milwaukee Police Ass'n v. Jones.

"In Jones, the Milwaukee Police Association (MPA) made an open records request of the Milwaukee Police Department for a copy of a particular 911 call," the decision states. "In response, the police chief provided an analog tape recording of the call, which originally had been recorded as a digital audio tape. The MPA followed up with a subsequent request that its expert be permitted 'to make a digital recording of the calls for the purpose of conducting a spectrographic and waveform review and enhancement of the conversations.'"

The chief denied the request on the basis that he had satisfied relevant open records law requirements by previously providing the analog tape recording, Gundrum observed.

"The MPA petitioned the circuit court for a writ of mandamus, asserting that it did not receive a 'copy' of the recording because the original 911 call was recorded digitally and the analog recording the chief provided had, according to the MPA's expert, 'suspicious record event anomalies,' indicating that the (MPA) may not have received the entire recording."

Thus, the MPA argued, it was not certain that the chief has provided them with a copy of the entire record, as required by the open records law, and the only means of ascertaining the authenticity of the record was to examine either the actual recording or a digital copy of the recording.

On appeal, the decision stated, the court determined that the chief satisfied the MPA's initial open records request by providing the analog tape recording but failed to satisfy the MPA's "subsequently enhanced" request to examine and copy the original digital recording.

"The enhanced request, we noted, was 'of a different nature - a request for access to the original (digital) recording - precisely because the analog (tape recording) could not be analyzed to gain the information that apparently was central to the MPA's concern,'" Gundrum wrote.

The appeals court also accepted the findings of the circuit court as to the differences between the analog and (digital) formats, Gundrum wrote, observing that the city did not dispute the MPA's assertions that the digital recording contained data not found on the analog version. Nor did it dispute that with a digital copy, the MPA's expert would be able to detect and enhance background voices, which would not be possible using only an analog copy.

"We determined that the chief's production of the analog tape recording failed to satisfy the MPA's enhanced request because of the differences between the analog and digital formats and the fact that the nature of the original digital recording was such that it provided more information to the MPA's expert than the analog tape recording provided," Gundrum wrote. "We concluded that the open records statute 'allows for exactly what the MPA has requested - access to the source 'material' and the opportunity for 'examination and copying,' and we held that the MPA was entitled to a digital copy of the original recording."

The situation in the Lueders case is very much like the one in Jones, Gundrum wrote.

"Similar to the digital versus analog 'copy' of the original digital recording in Jones, in this case, it is undisputed that while electronic copies of the emails contain the same information as the emails themselves, the paper printouts from those emails are missing substantive information," the decision stated. "It is undisputed, for example, that the electronic copies and the emails themselves, as received and stored on Krug's computer, contain 'metadata,' which information was not on the paper printouts from the emails."

Indeed, the appeals judge continued, by affidavit in the Lueders case, a Milwaukee Journal Sentinel reporter averred that electronic records include metadata 'that show when documents were created and who created them,' and that a paper printout from electronic records, unlike an electronic copy, results in a loss of 'some information - such as who used a computer or wrote an electronic document - that (reporters) would have no way of knowing.'

"Similarly, the attorney general's Wisconsin Public Records Law Compliance Guide recognizes that '(e)mail messages may contain transmission information in the original format that does not appear on a printed copy,'" Gundrum wrote.

Also, Gundrum wrote, through discovery Krug provided Lueders a flash drive containing electronic copies of the emails Lueders sought in his enhanced request. Upon review of those emails by Lueders's information technology expert and by comparing them with what a typical printout of an email looks like, the judge continued, the expert determined that some data was only available via an electronic record.

According to the expert, the electronic copies contained metadata and other information obtainable from a forensic evaluation of the email messages that would not be available from a printed document, the decision stated.

Metadata missing

"'Metadata' generally means information about other data," the decision quoted the expert. "In the email context, metadata is best understood as the email 'headers' that both provide a record of how an email traveled from the sender to the recipient, as well as data that is interpreted by client applications to display information."

In Microsoft Outlook email files, the expert wrote, that metadata would include headers which give detailed information regarding the sender, recipient, attachments, server locations, and other information.

"In the Microsoft Outlook email files from Mr. Krug, I found these items of metadata," the expert wrote. "For example, a short email from one constituent contained over 2,000 bytes of human-readable text, only 10% of which was text that would appear in a printed copy of the email message."

Referring to a paper printout from an email on hand at the time of his deposition, Gundrum wrote, the expert illustrated the difference between electronic copies of emails and paper printouts from those emails.

The expert noted a paper printout on hand had a representation of metadata that's in a file at the top of it: From, Sent, To, Subject, Attachments.

These are all things that are commonly understood when people read emails, but the expert also told the court that there was significantly missing data, such as which email address the email came from.

"As indicated, the expert averred that the printouts from the emails in this case did 'not contain the 'same information' as electronic copies of the same records,'" the decision stated.

The conclusion was unmistakable, the decision concluded.

"The record makes clear that copying the emails onto a flash drive would have provided Lueders with a copy of the emails that contained all the information, including the metadata, that the original emails themselves contain; however, affording Lueders access to only the paper printouts did not," Gundrum wrote. "Thus, while affording Lueders access to the paper printouts may have been a satisfactory response to his initial open records request, it was not a satisfactory response to Lueders's subsequent, enhanced request for the emails in electronic form."

Accordingly, the appeals court found Lueders was entitled to the emails in electronic form, just as the MPA was entitled to a digital, not just analog, copy of the original digital 911 recording in Jones.

Finally, Gundrum circled back to Krug's argument that "the authority, not the requester, decides the format in which copies of records are provided," and his citation of another case, Grebner, purportedly backing him up.

Again, Gundrum noted that that situation refers to in-person requests.

"Moreover, the issue in Grebner was whether the clerk, who offered to make a copy of election poll lists for the requester, had the authority to deny the requester's in-person request to make a copy of the lists himself on a portable photocopy machine that he brought to the clerk's office," Gundrum wrote. "The clerk's concern, like our concern in reviewing the case on appeal, was that the poll lists not be damaged during the copying process."

The decision in Grebner was based upon the means used to copy the records at issue - the records custodian, the clerk, copying the records with government equipment versus the requester copying the records with a personal, portable photocopy machine - and the potential risk of damage to the records by the means proposed by the requester, the decision states.

"We did not address the format in which the records themselves would be provided to the requester, which is the issue before us in this case," Gundrum wrote. "Indeed, whether the clerk made copies of the poll lists on a government photocopier or allowed the requester to use his own photocopier to make the copies, the requester would receive the same thing - a paper copy of the records he sought."

In the case before the court now, Gundrum observed, Lueders's enhanced request was for a copy of the emails in "electronic form," which was a request to receive a copy in a format fundamentally different from the paper printout format Krug made available to Lueders.

"Grebner is of no import to the case before us," he concluded.

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