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COA: Paper copies didn’t satisfy open records request for emails

Bill Lueders v. Scott Krug, 2019 WI App 36; case activity (including briefs)

Here’s a non-criminal case that may nevertheless prove useful to your criminal practice, if you seek information via the open-records law. Lueders (a reporter) sent an open records request to Krug (a state legislator)’s office, asking for emails referring to a particular set of subjects. Krug’s office responded by supplying paper printouts of the requested emails; Lueders replied that he specifically wanted an electronic version of the emails, which Krug’s office refused to give him. The court of appeals now upholds the circuit court’s ruling that Lueders was entitled to the electronic data.

Krug argued, first, that a provision of the open records law gave him, rather than Lueders, the right to decide whether to permit copying of the record or instead supply “a copy substantially as readable as the original.” (¶6); Wis. Stat. § 19.35(1)(b). The court rejects this argument by noting that the statute, by its own terms, applies only where “a requester appears personally to request a copy of a record that permits copying,” and Lueders sent in his request by email.

Turning to the meatier issue–whether the printed copies were “a copy of the record” (i.e. the emails) such that Krug had satisfied Lueder’s second request–the court holds that they were not. There are several bases for the court’s conclusion:

  • The statutory definition of “record” which includes “any material on which … electromagnetic information or electronically generated and stored data is recorded or preserved, regardless of physical form or characteristics” and also “any … medium on which electronically generated or stored data is recorded and preserved.” The court notes that the electronic records that comprise the emails are “substantively different in nature and content from the paper printouts.” (¶16). Not least because …
  • The emails contain metadata, and that metadata is not viewable in the paper copies Krug handed over. Thus, for example, the electronic files comprising the emails would reveal the actual email address of the sender, rather than a “friendly” name, as well as other information about the sender and recipient and any attachments. Lueders’s expert testified that one such email contained over 2,000 bytes of text, only 10% of which was in the paper copies. (¶¶11-15).
  • The foregoing points support the court’s reliance on State ex rel. Milwaukee Police Ass’n v. Jones, 2000 WI App 146, ¶11, 237 Wis. 2d 840, 615 N.W.2d 190. In that case, the Association sought a recording of a 911 call. The record’s custodian would provide only an analog tape copy of the recording, though the recording itself was digital. Because the digital recording contained information that was degraded in, or absent from, the analog copy, the Jones court held the analogue recording was not truly a “copy” under the statute’s terms. Similarly here, the printed emails did not contain all the information in the emails, and so were not a sufficient “copy” to satisfy Krug’s obligation under the law. (¶¶8-11).

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