[cross posted on legalresearchplus] Wisconsin’s Public-Records Law: Preserving the Presumption of Complete Public Access in the Age of Electronic Records, by Leanne Holcomb and James Isaac, 2008 Wisconsin Law Review 515 (2008).

Under Wisconsin’s public-records law, the public is permitted access to the actions of government officials in order to act as an effective check on government power and give force to the democratic system. This policy translates into the legal right of inspection by any person of any public record, . . . Over the last three decades, however, statutes have not kept pace with technological advancements that have dramatically transformed public records, threatening the presumption of complete public access. The emergence of electronic documents as the preeminent record of government activity has complicated the application of existing public-records law to records-retention practice and the disclosure of public records. As e-mail illustrates, primary electronic documents are often capable of being “deleted,” but not in the traditional sense of this term. this difference begs the question whether deleted e-mail, and other deleted electronic documents like it, belongs to the public record and should be disclosed upon request. This Comment argues for an answer in the affirmative. Additionally, the creation of each primary record in electronic form includes numerous unseen secondary records, such as metadata, that do not accompany traditional paper records. While secondary records are unintentionally created, they nonetheless provide a considerable amount of information about the creation and history of the record, information that is sometimes of great use to the requester and arguably in line with the existing statutory definition of record. Wisconsin needs to address these electronic-records issues in order to maintain an up-to-date and relevant public-records law. This Comment therefore suggests adapted statutory language and continued judicial recognition of electronic documents’ peculiarities, aiming to modernize the public-records law and provide a solid platform from which the legislature can address inevitable technological advances in the future.

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