¶ 34. (concurring). The Wisconsin State Senator, explaining the redaction of citizens' identifying information from documents released in response to a records request, wrote that citizens "must have total freedom to contact me on issues of concern to them" and that disclosure of personal information would "chill free speech and debate in the legislative process." This quote comes not from Senator Jon Erpenbach, a Democrat who is the respondent in this action, but from Senator Mary Lazich, a Republican. Letter from State Senator Mary Lazich to Bill Leuders, Wisconsin Center for Investigative Journalism (Nov. 13, 2013), available at http://s3.documentcloud.org/documents/834977/ sen-lazich-redistricting-contacts.pdf. I start my concurrence with the quote from Senator Lazich to underscore that this is not a Democrat versus Republican issue, or a liberal senator versus conservative think tank issue. Legislators on both sides of the aisle have raised the specter of harassment and chilling free speech to justify the failure to disclose identifying information in citizens' communications.
*84¶ 35. There is some validity to the legislators' concerns. In a divisive political climate, the bright light of publicity brings with it the fear of reprisals, blacklisting, harassment, even violence.1 Justice Louis Brandéis, who famously said that "[s]unlight is said to be the best of disinfectants," Louis D. Brandéis, What Publicity Can Do, Harper's Weekly, Dec. 20, 1913, also championed the right of privacy, arguing that "[t]he common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others." Samuel D. Warren and Louis D. Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890-91).
¶ 36. The result in this case gives me pause. It puts all citizens on notice that when they communicate their political views to their legislators, they should be prepared to see those communications, with their names attached to them, publicized by whatever means a requester might wish — newspaper, press release, searchable online database, etc. My fear is that citizens who want to express an opinion to their own legislators, but who want their communications to remain private, will either refrain from voicing their opinions or will use the anonymous social media that is the antithesis of civil discourse. It is no answer that these people can pick up the phone and call their legislators or see them personally. Access is often difficult. And it bothers me that a citizen who wishes his or her views to remain private is limited in the kind of communication to be used.
*85¶ 37. So I can see how it might serve the public interest to carve out a narrow exception to the open records law for the identifying information of individual constituents who write their own legislators to express an opinion about pending legislation. Such a narrow exception would not alleviate the proliferating cesspit of anonymous online comments we see in today's political environment, but at least the citizen who wants his or her privacy to be intact when communicating with a legislator might not have to resort to it.
¶ 38. The problem is that the underlying bases for such an exception — fears of harassment and chilled speech — can be raised about a broad range of communications. Allowing records custodians to redact information on these bases would undermine the "presumption of complete public access, consistent with the conduct of governmental business" that is at the heart of our open records law. Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶ 82, 327 Wis. 2d 572, 786 N.W.2d 177 (quoting Wis. Stat. § 19.31). The exemption Senators Erpenbach and Lazich assert would flip the presumption of access on its head, and we would end up with a default excuse that a legislator would be able to trot out at will. For example, what if the senders were not constituents but citizens outside the legislator's district, or even outside the state? What if the request targeted e-mails from a single individual, rather than an entire class of senders? What if it sought e-mails in which the sender proposed a draft of legislation, rather than just expressing a point of view about already-pending legislation? What if it targeted e-mails only from senders who also contributed to the legislator's campaign?
¶ 39. In my view, allowing the redaction in this particular case would lead down the path where the risk of citizen suppression and harassment would be in the *86eyes of the beholder and the validity of the custodian's rationale would be either praised or castigated depending on what political party the custodian happened to belong to. Every controversial redaction would then draw the courts into the political fray. Outcomes would depend upon, or at least would be seen to depend upon, politics. That would be a disaster.
¶ 40. Instead, the courts' proper role in these cases is to ensure that whatever the rule is, it is going to be applied in an apolitical and even-handed manner, applying the same to everyone, across the board, no matter which legislator is holding the records. So, despite my misgivings, I concur in the decision that under current law these e-mails are public records subject to release without redaction. If the legislature sees fit to carve out a surgical exception allowing communications from their own constituents to remain private, the legislature may do so. But then, that rule would be applied to everyone as well, no matter what party or political belief.
¶ 41. As it stands now, accepting Senator Erpenbach's position that an exception exists in this particular case based on the common law balancing test would open a Pandora's box. Instead, this case closes that box. This result is a notice to legislators and citizens, whoever they are and whatever their opinions, that communications to legislators are subject to the open records law, without redaction.
The record on appeal reflects that lawmakers on both sides of the political controversy received threats of violence, dozens of them, in the weeks immediately preceding the plaintiffs' request for the e-mails in question.