E-mail messages can be obtained under the open records law just as any other record would be. McCullough Plumbing, Inc. v. McFarland, 288 Wis. 2d 657 (2005). They are subject to the same exemptions and privileges, such as the attorney-client privilege.
E-mail messages are also subject to the state’s records retention policies, but a failure to comply with the policies cannot be “attacked” under the open records law. State ex rel. Gehl and DSG Evergreen F.L.P., v. Connors, et al., 306 Wis.2d 247 (Wis. 2007).
The Wisconsin Supreme Court was considering in 2009 whether “employees’ personal e-mails are public records and, if they are, whether public policy reasons outweigh the public’s interest in disclosure.” The case, Schill v. Wis. Rapids School Dist., No. 2008AP000967-AC, involves school employees who sought an order from the court determining whether the e-mail messages are public. The state’s Court of Appeals has asked the Supreme Court to consider the question, because there is no opinion yet addressing the issue and it is of significant importance to the public.