Gov. Tony Evers' use of a pseudonym email is sparking a debate. Is it legal?

MADISON — Gov. Tony Evers' email practices are under scrutiny after a published report revealed the Wisconsin governor uses a pseudonym to communicate via email — a longstanding and bipartisan practice Wisconsin governors have engaged in for years to communicate about public business.

Although Evers and Attorney General Josh Kaul, both Democrats, maintain the practice was legal, government transparency advocates say parts of his email practices might be difficult to uphold in court.

Conservatives raised concerns about Evers' email practices after the website Wisconsin Right Now published a now-defunct alias email address previously used by Evers.

The email, warren.spahn@wisconsin.gov, is named after Hall of Fame Milwaukee Braves pitcher Warren Spahn, a player Evers previously praised in public comments. Emails provided to Wisconsin Right Now from the governor's office included messages from the alias email signed with Evers' name.

What did Evers say about the alias email?

Evers' office defended the practice as a matter of digital security.

“This works. The system works," Evers told CBS 58's AJ Bayatpour following an economic roundtable Wednesday. "It is not illegal. People can still access the information they want.”

Kaul defended Evers' practices at a news conference Friday and said he had two emails, both with addresses as variants of his name.

"Having sound email management practices makes sense," Kaul told reporters, adding that state lawmakers also use external and internal emails.

And in response to claims from former Assistant Deputy Attorney General Daniel Lennington that the state Department of Justice had guidelines recommending officials not use alias emails, Kaul said all public guidance issued by DOJ’s Office of Open Government is posted on the office's website.

He also said the DOJ guidance Lennington referenced should be publicly available. A Milwaukee Journal Sentinel search of the DOJ's Wisconsin Public Records Law Compliance Guide returned no guidance explicitly addressing alias emails.

"What this has really been about is manufactured outrage," Kaul added. "The fact that Scott Walker had the same setup during his time as governor and nobody raised an issue about that and now, all of the sudden, it's been the focus of attention for several days, it goes to show this is not a real issue."

Alias email not inherently illegal, open government advocates say

Reports about Evers' alias email drew criticism from open government advocates, including Bill Lueders, president of government transparency watchdog Wisconsin Freedom of Information Council.

"It strikes me as just nonsense," Lueders said. "There's a way in which digital security can be compromised for every email address. Basically, if that argument holds, then no email addresses of anyone should ever be made public."

Both Lueders and Tom Kamenick, president and founder of Wisconsin Transparency Project, said Evers' use of the non-public-facing alias email doesn't violate state open records law.

However, that only holds as long as Evers provides emails from the alias account when requested. Put simply, if a reporter or citizen asks for emails sent or received by Evers, his office must provide all relevant emails from the alternative account as he would for his official account.

"The real risk is that it creates the opportunity for abuse," Lueders said. "If people make records requests for the governor's emails, how do you know if they're searching these secondary email accounts? You don't unless they admit they exist."

Evers spokeswoman Britt Cudaback said in an email that Evers' office provides all relevant records from alias emails.

What's more, she said, the governor's office informs requesters that some emails provided come from an alias email address. The Journal Sentinel has responses to records requests from the governor's office supporting Cudaback's claim.

"Dignitaries in the state of Wisconsin have alias email addresses, including the governor, first lady, and lieutenant governor, as has been the case for at least the last decade that I’m aware of, including under former Gov. Walker," Cudaback said.

Whether Evers can fully redact alias email addresses remains legally unchallenged

While Evers can use an alias email, it's unclear whether his office can keep the email address private.

When Evers' office responds to a public records request with documents that include emails sent from an alias account, staff redact the email address. That means requesters, including reporters, are unaware of what alias address Evers uses for discussing public affairs.

In letters, the governor's Office of Legal Counsel claimed making alias emails available for public view would "significantly hinder" Evers' ability to communicate and work efficiently.

"There is minimal harm to the public interest, given that there are numerous public means to communicate with the Office of the Governor," the letter reads. "Only the address is redacted, not the remaining content."

Republican former Gov. Scott Walker's office used a similar practice, according to former chief legal counsel Katie Ignatowski. She said Walker's office redacted the first half of his alias email, kevin.scott@wisconsin.gov, but left the "wisconsin.gov" domain name visible. The "wisconsin.gov" domain name indicates the emails came from an official government account.

For Evers, redacting the full alias email address may not hold legal water in court. That's according to Lennington, the former assistant deputy attorney general who now works for the conservative legal firm Wisconsin Institute for Law & Liberty.

Evers told CBS 58 the practice was "absolutely" fine Wednesday.

But Lennington questioned whether redacting alternate emails would pass the "balancing test" — a legal framework that weighs whether the public interest of providing personal information is greater than the interest of keeping the information private. Officials must provide a reason to keep personal information private.

"As far as the balancing test is concerned, the concern that the public will find out about this email address seems like it would not weigh in favor of nondisclosure," he said.

Kamenick offered a more cautious assessment.

"I'm not entirely sure a court would buy that it's a negative if people can contact the governor a different way," he said. "But I could see a court valuing having a less well-known email address, and I think we know the governor's email address gets huge amounts of email."

Those "huge amounts" of emails likely include spam and advertisements mixed with "human, meaningful messages," Kamenick said. "I don't know how the courts would come out on it."

Kaul declined to weigh in on the issue.

"Obviously if the point of having an internal email is to minimize email traffic so you can do your job, making that public would impact that," Kaul said.

Regardless, Lueders said, Evers' decision to use a hidden email is concerning no matter what purpose he uses it for.

"Anytime government officials employ secrecy in their communications," he said, "they risk creating an atmosphere of distrust between themselves and the people they represent."

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This article originally appeared on Milwaukee Journal Sentinel: Evers' use of a pseudonym email is sparking a debate. Is it legal?