AG: Spellman's e-mails can stay private

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Kevin Hoffman
Friday, October 8, 2010
— The attorney general ruled this week a former Lake Geneva alderman is not obligated under the state's open records law to disclose e-mails to other officials discussing a proposed development project.

The Gazette in April requested all council member e-mails related to the development of more than 700 acres of land by owner Robert Hummel on the city's south side. The project is central to a multimillion-dollar lawsuit filed by Mirbeau of Lake Geneva, alleging city officials maliciously interfered with the contract.

Council member Penny Roehrer complied, providing letters indicating that some council members privately opposed the project. Others said they had no such documents.

The e-mails showed at least three council members corresponded with one another and anti-development groups. Former council member Tom Spellman said he didn't have to release his e-mails, since he is no longer a public official.

The Gazette requested that the Wisconsin Attorney General issue an opinion on the issue.

Council member e-mails are considered public documents under Wisconsin Open Records Law. However, the attorney general issued an opinion that if the person is no longer a public official and privately retains the records, they do not have to be disclosed.

"Mr. Spellman has left office, so he is no longer an 'authority,'" Lewis Beilin, assistant attorney general wrote in his opinion. "He simply has no legal obligation … to respond to requests for records that are under his personal control, whatever their origin, content, format or current location."

Attorney general opinions are not binding but rather recommendations based on open records laws and court rulings.

Lake Geneva council members have city-issued e-mail addresses, but not everyone uses them, said Jeremy Reale at the city clerk's office. He wasn't certain if the city maintains those records after a council member leaves office.

In Madison, electronic communications from city officials are stored on a database for seven years, making it part of the city's records—not the elected authority, Madison Assistant City Attorney Roger Allen said. That makes it easier for the public to retrieve information and less likely records could be erased.

Allen said public officials are strongly encouraged to use their city e-mails to discuss council matters. That especially applies to council members, who often are contacted by constituents at home or through personal e-mail addresses.

Bill Lueders, president of the Wisconsin Freedom of Information Council, said the attorney general's decision in the Lake Geneva case might allow officials to privatize information of great public interest.

"I think it's a little bit troubling," Lueders said. "It's only a matter of time when there's circumstances that someone is no longer a public official because of what they did while they were (in office), and there's a public interest of what they did while on the job."

The $29 million lawsuit between Mirbeau and Lake Geneva is pending in federal court. U.S. District Court Judge J.P. Stadtmueller issued a stay of discovery until motions to dismiss by two defendants are heard.

Last updated: 3:17 pm Thursday, December 13, 2012

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