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Crivello Carlson, S.C. is a full-service litigation firm with attorneys who specialize in trial, appeal, mediation, and arbitration.

WI Court of Appeals Affirms a Party Must Supply Electronic Records if Specifically Requested

Author: Samuel C. Hall

The Wisconsin Court of Appeals recently decided an issue regarding Wisconsin open records law. In Lueders v. Krug, plaintiff requested electronic records of emails after already receiving records of those emails in paper form. The defendant denied this request under Wis. Stat. § 19.35(1)(b), which states that the authority having custody of the records can allow the requestor to copy or inspect a record or can provide the requestor with a copy of the record that is “substantially as readable” as the original. Because defendant provided plaintiff with printouts of the emails, defendant claimed he did not need to fulfill plaintiff’s request because he already provided him with a copy “substantially as readable” as the original. 

Affirming the circuit court’s decision, the court of appeals held that the plaintiff is entitled to receive a copy of the emails in electronic form. This ruling stems from the fact that there is substantive information that is omitted when an email is printed out. This information, called metadata, can only be seen on the electronic copies of the email and it shows when the documents were created and who created them. Because plaintiff specifically indicated a clear desire to see the metadata of the email, he is allowed to obtain the records in electronic form. 

This ruling now requires that a party must supply electronic records even if they previously supplied records in paper form. Because of the metadata that an electronic record contains, it cannot be considered “substantially as readable” as printed versions of that record. Thus, if a requestor specifically requests electronic records, they must be provided with them. 

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