The latest issue of the Wisconsin Law Review features a thought-provoking examination of state public records law in the digital age.
"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).
[The article does not yet appear to be accessible on LexisNexis or Westlaw, but it is available in print here at the Law Library]
The authors write:
[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 authors explore how the emergence of electronic documents as the preeminent record of government activity has clouded the application of existing public-records law, records-retention practice and the disclosure of public records.
Faced with this problem, the Wisconsin Department of Justice (DOJ) has decided to wait until technology is better understood before requesting that the legislature update the statutes. [citing a 2004 webcast] While it waits, the absence of adequate public-records statutes allows electronic storage to easily conceal records from the public view and, even worse, to destroy them through obsolescence.
Email, logs, and metadata are specifically considered - what kind of information is available and whether they should be considered a part of the public record (authors argue yes)
The article wraps up with recommendations on how to update Wisconsin's public records statutes to adequately address retention and access to these electronic records.
Source: Legal Research Plus