School District Must Release E-Mail List of Parents to Whom It Sent Various Ideological Advocacy Messages

"[T]he District wants to be able to use government resources to collect and utilize these e-mail addresses to promote and advance the particular 'community outreach' issues and positions of District (government) leaders while denying others in the community the opportunity to utilize the e-mail addresses to share differing viewpoints."

From yesterday's Wisconsin Court of Appeals decision in Gierl v. Mequon-Thiensville School Dist. (written by Presiding Judge Mark Gundrum and joined by Judges Lisa Neubauer and Shelley Grogan):

[Plaintiff Mark] Gierl's petition for a writ of mandamus states:

On June 24, 2020, the District sent out an email inviting "parents and guardians in our school community to participate in a webinar this Friday on the topic of privilege and race." The email described the webinar, titled "The Talk: A Necessary Conversation on Privilege and Race with Our Children," as including topics such as the "transitional model of change," the "spectrum of racism," the "Phenomenon of the George Floyd case" and "interventions to help become a powerful ally."

Gierl subsequently requested from the District the list of e-mail addresses to which the invitation was sent. In response, the District sent Gierl a letter indicating the invitation was sent to "all parents and staff members" of the District. The District provided the list of all staff e-mail addresses to which the invitation was sent but refused to provide the list of parent e-mail addresses, stating, "the District does not believe that there is a statute or case explicitly requiring or prohibiting disclosure of the list of parent email addresses, and as such, we have decided to respectfully decline your request for parent email addresses." …

The Court of Appeals disagreed with the school district:

[T]he legislature has written:

[I]t is … the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them…. [P]roviding persons with such information is declared to be an essential function of a representative government …. To that end, [WIS. STAT. §§] 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

As our supreme court has noted, this statement "is one of the strongest declarations of policy to be found in the Wisconsin statutes." Following this declaration, Wisconsin maintains a "strong presumption of complete openness with regard to public records."

The District asserts that the parent e-mail addresses do not relate to the "affairs of government and the official acts of those officers and employees who represent them." Like the circuit court, we disagree. The District, a government entity, uses government resources to collect e-mail addresses of District parents and then uses those e-mail addresses to promote and advance selected matters of interest to District personnel….

{[I]n addition to the e-mailed invitation for "The Talk: A Necessary Conversation about Privilege and Race with Our Children," the e-mail list was used by the District for e-mails (1) encouraging the parent recipients to vote in an upcoming District building referendum while touting the "importan[ce]" of the referendum passing, such as referring to the referendum question as an "important item[ ] … that seeks to address high-priority challenges in our public schools related to growth and capacity" and telling e-mail recipients that "85 percent of [stakeholders participating in a recent community-wide survey] believe the District's facility needs should be addressed now"; (2) directed to "Staff, Parents, Guardians, and Members of Our Community" related to "[t]he death of George Floyd at the hands of police officers, one of many in our country's long history of injustice based on race" and referring to "the stark reality that there are still mountains to move and institutions to reshape to eliminate race-based inequities and eradicate racism in this country…. And that change can't happen until our whole society accepts that validity and the history behind it"; (3) asserting the District's "commitment to educating our community about racial equity and inclusion and the need to stamp out systemic racism"; and (4) touting District advocacy for "topics" and "proposed bills" in the legislature. Gierl further avers and the record evidence shows that in "The Talk," a slide was included with a note at the bottom that read: "'Blacks' can be substituted with people of any nationality/ethnicity other than European white since it's people of European dissent who have held institutional power in America since its inception" and that the superintendent closed "The Talk" with his own comments encouraging parents to "advocat[e] at the community-wide level for the change you see needed. It can't just happen in the hallways of the school."} …

While the District relies upon the fact that it has already informed Gierl who it was sending e-mails to, i.e., "District parents," that response only identifies the general body of persons; it does not identify the specific individual's e-mail contact information the District was using. Providing the actual e-mail addresses, as requested by Gierl, does this. Importantly, the e-mail list is the actual "record."

In refusing to release the parent e-mail addresses, the District, without on-point statutory or case law support, contends the balancing test favors keeping the list secret because releasing it would have a "chilling effect" on parents' willingness to provide their e-mail addresses to the District and thus stifle District-parent communications. But, as the circuit court noted, "[W]hat's missing in the record is support for that position that a chilling effect will occur. In the Court's mind[,] it's largely speculation. Because the record here just does not suggest that the district has any support for that chilling effect argument." The court relatedly noted that the record shows that in 2015 the District released its then-current parent e-mail list to a third-party requestor, a former mayor for the City of Mequon, yet no chilling effect was observed following that release. "[A]fter the 2015 disclosure[,] there's no evidence that the school district received any comments from those persons that may have been receiving emails from whoever the former mayor disclosed the list to, whether it be library, or nature center, or anyone else for that matter. And the district wasn't able to demonstrate that anyone had even come to the district to suggest or request that their information should be withheld or not disclosed." …

The District also expresses concern that Gierl's purpose in requesting the e-mail addresses is to "SPAM [the parents] with his political ideology." Essentially, the District is concerned that Gierl disagrees with some issues or positions about which it has communicated with parents using the e-mail list, and it fears Gierl will utilize the list to identify and perhaps organize parents who might share his views regarding the District's positions.

In short, the District wants to be able to use government resources to collect and utilize these e-mail addresses to promote and advance the particular "community outreach" issues and positions of District (government) leaders while denying others in the community the opportunity to utilize the e-mail addresses to share differing viewpoints. Gierl states: "If the District had the discipline to limit itself to emails about bus schedules, enrollment, office closures and the like, the public interest in accessing this Distribution List would not be as high." We agree; the balancing test does not tolerate utilizing taxpayer resources for an ideological or political monopoly….

Congratulations to Tom Kamenick (Wisconsin Transparency Project), who represented the plaintiff (and who comments here as tkamenick).