¶ 173. (concurring). I concur in the result reached by the lead opinion, but I cannot agree with its reasoning. The lead opinion concludes that the content of the teachers' personal e-mails have no connection to a government function and therefore are not "records" under Wis. Stat. § 19.32(2) (2007-08).1 Lead op., ¶ 142. The dissent concludes that the e-mails at issue here are records, that the public interest in disclosure outweighs the public interest in nondisclosure, and therefore, that the e-mails should be released. See dissent, ¶ 230. I write separately because I agree with the dissent that an e-mail sent by a government employee from a government computer using a government e-mail account and stored on a government server is a "record" as defined in § 19.32(2).2 However, when a record is of a purely personal nature and does not evince a violation of any law or employer policy, I conclude that the public interest in nondisclosure always outweighs the public interest in disclosure.3 Thus, I conclude that the teach*643ers' personal e-mails not reflecting a violation of law or policy should not he released.41 write further to clarify the procedure that governs review of these kinds of record requests under our existing case law.
I
¶ 174. Requesters seeking documents under Wisconsin's open records law5 are entitled only to materials that meet the statutory definition of a "record" in Wis. Stat. § 19.32(2).6 See Wis. Stat. § 19.35(1)(a) ("Except as otherwise provided by law, any *644requester has a right to inspect any record.") (emphasis added). Thus, when faced with an open records request, the first step is to determine which requested items are records. See Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶¶ 23-31, 300 Wis. 2d 290, 731 N.W.2d 240. Just because an item is a record, however, does not automatically guarantee release. A record need not be disclosed if it falls under one of the statutory or common law exceptions to disclosure. Linzmeyer v. Forcey, 2002 WI 84, ¶ 11, 254 Wis. 2d 306, 646 N.W.2d 811. A record may also be withheld from the record requester if the public interest in nondisclosure outweighs the public interest in disclosure; this is known as the balancing test. See id., ¶¶ 42-43.
¶ 175. I agree with the dissent and Justice Bradley that the e-mails at issue in this case are "records" as defined by Wis. Stat. § 19.32(2). An e-mail (specifically, the physical hard drive containing the e-mail's digital data) is unarguably "material on which ... electromagnetic information is recorded or preserved... , which has been created or is being kept by an authority." § 19.32(2).7 E-mails also do not fall under any of the statutory exclusions specified in § 19.32(2). See dissent, ¶ 206; Justice Bradley's concurrence, ¶ 151.
¶ 176. No party alleges that a statutory or common law exception to release of the records applies. I therefore move to the balancing test. Under the balancing test, we weigh the public interest in disclosure against the public interest in nondisclosure. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, ¶ 55, 319 Wis. 2d 439, 768 N.W.2d 700. The balancing test must be *645applied to each individual record. Id., ¶ 56. Applying this test, the dissent concludes that there is "no public interest" in nondisclosure and a "strong public interest" in disclosure of these e-mails. Dissent, ¶¶ 228-29. I conclude otherwise.
¶ 177. It is important to remember the purpose and public policy underlying the open records law. The legislature does not leave us in the dark on this front. Wisconsin Stat. § 19.31 declares:
In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be 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. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 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. (Emphasis added.)
¶ 178. This statute tells us that the open records law seeks to make widely available the records relating to "the affairs of government and the official acts of those officers and employees who represent them." While the legislature mandates a presumption of complete public access, the presumption is confined by the addendum, "consistent with the conduct of governmental business." Thus, the open records law declares that the public's interest inheres in government business, affairs, and official acts.
*646¶ 179. The lead opinion uses this public policy directive as grounds to create a new exclusion to the definition of a "record" wholly divorced from the text of § 19.32(2). See lead op., ¶¶ 76-86. I take this clear policy pronouncement as an expression of the reach of the public interest when applying the balancing test— weighing the public interest in disclosure against the public interest in nondisclosure.8
¶ 180. As I see it, the legislature has made clear that the public has no interest in the disclosure of records that are not reasonably related to the conduct of government affairs. Or put positively, the public interest extends only to records that reasonably bear upon public affairs. Accordingly, the public would normally have no interest in records relating to purely personal matters. This is not to say the public never has an interest in records relating only to personal matters. Such records are relevant to the conduct of government affairs when personal conduct violates state or federal law, for example, or when the records evince a violation of the public employer's internal policy. This accords with the purpose of sunshine laws such as the open records law — to ensure that government is behaving itself and spending our tax dollars legally and wisely.
¶ 181. On the other side, the public does have at least some interest in the nondisclosure of purely personal records. The public has an interest in providing some measure of privacy to public employees who make reasonable and lawful personal use of government resources. It is in the public's interest that public employees be permitted to efficiently and privately conduct limited personal business at work, just as many *647private sector employees routinely do. The public also has an interest in the government's ability to hire and retain skilled employees. Some measure of privacy in conducting personal matters contributes at least in a small way to employee productivity and contentment. Some might be dissuaded from public service if they believed a private e-mail to their spouse — perfectly lawful and not in contravention of any employer policy —could be posted for all the world to see.9
¶ 182. The purpose of the open records law is to open a window into the affairs of government, not to open a window into the private lives of government employees. Therefore, where e-mails, either individually or cumulatively,10 are of a purely personal nature and reflect no violation of law or policy, the public has no interest in such e-mails, and the public interest in nondisclosure will always outweigh the public interest in disclosure. Thus, the public has no interest in such things as a teacher's e-mail reflecting after-work plans, setting up a doctor's appointment, or securing babysitting for her children. If the e-mails reflected such activities as a teacher's romantic involvement with a student, campaigning for a politician using government resources, or abuse of the e-mail system in violation of the district policy, the public interest would undoubtedly be strong. Such a determination can only be made by reviewing each e-mail.
¶ 183. Accordingly, I agree with the lead opinion and Justice Bradley that "a custodian should not release *648the contents of e-mails that are purely personal and evince no violation of law or policy." Lead op., ¶ 10 n.4.
II
¶ 184. This case is the first time this court has addressed the applicability of the open records law to personal e-mails. As such, I wish to further clarify the procedure that governs review of these kinds of record requests as established by our existing case law.
¶ 185. Our case law is clear that if the content of the records is unknown, and the record requester challenges the custodian's withholding of records, the circuit court conducts an in camera review. In State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965), this court explained as follows:
The duty of first determining that the harmful effect upon the public interest of permitting inspection outweighs the benefit to be gained by granting inspection rests upon the public officer having custody of the record or document sought to be inspected. If he determines that permitting inspection would result in harm to the public interest which outweighs any benefit that would result from granting inspection, it is incumbent upon him to refuse the demand for inspection and state specifically the reasons for this refusal. If the person seeking inspection thereafter institutes court action to compel inspection and the officer depends upon the grounds stated in his refusal, the proper procedure is for the trial judge to examine in camera the record or document sought to be inspected. Upon making such in camera examination, the trial judge should then make his determination of whether or not the harm likely to result to the public interest by permitting the inspection outweighs the benefit to be gained by granting inspection.
Id. at 682 (footnote omitted). We affirmed this proce*649dure in State ex rel. Morke v. Donnelly, 155 Wis. 2d 521, 455 N.W.2d 893 (1990). We explained:
Youmans shows that the in camera inspection assists the court in determining whether the harm to the public interest by allowing inspection outweighs the public interest in inspection. After reviewing the records in camera, the court may decide that only certain records or portions of a particular record should be released.
Id. at 531 (footnote omitted).
¶ 186. In this case, we similarly do not know the content of any of the e-mails. Under our cases and under § 19.37(1),11 Bubolz can challenge the district's determination that the e-mails were personal, or that they evinced no violation of law or policy. If Bubolz chooses this route, the court must determine via in camera inspection whether the e-mails are personal in *650nature and, individually and cumulatively, whether they contain evidence of any violation of law or policy. If they are personal and do not contain evidence of any violation of law or policy, the balancing test always weighs in favor of nondisclosure. But this review process is important; without it, the people will be deprived of the transparency the legislature mandated in the public records law.12
¶ 187. For the foregoing reasons, I respectfully concur.
All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.
A majority of this court (composed of Justice Bradley, Justice Roggensack, Justice Ziegler, and me) agrees that an e-mail sent by a government employee from a government computer using a government e-mail account and stored on a government server is a "record" as defined in Wis. Stat. § 19.32(2).
Justice Bradley adopts my analysis and likewise concludes that the public interest in nondisclosure outweighs the public interest in disclosure when the content of an e-mail is purely personal and evinces no violation of law or policy. Justice Bradley's concurrence, ¶ 172.
Justice Bradley also concludes that, "once the custodian determines that certain e[-]mails are purely personal and evince *643no violation of law or policy, the custodian does not undertake a balancing of each request." Id. It is not clear what this statement means. Under both her and my approach, the custodian's determination that an e-mail is purely personal and evinces no violation of law or policy is the product of a balancing of each e-mail. To then conclude that no balancing is required does not make sense.
A majority of this court (composed of the Chief Justice, Justice Bradley, Justice Crooks, Justice Prosser, and me) also agrees that insofar as the teachers' e-mails are purely personal in nature and do not evince a violation of law or policy, they should not be released by the district.
Wis. Stat. §§ 19.31-19.39.
Wisconsin Stat. § 19.32(2) provides as follows:
"Record" means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. "Record" includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. "Record" does not include drafts, notes, preliminary computations and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or bequest; and *644published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.
The lead opinion concedes this as well. See lead op., ¶ 56.
Justice Bradley adopts this approach as well. Justice Bradley's concurrence, ¶¶ 165-67.
The lead opinion's analysis explains many of these interests as well. See lead op., ¶¶ 83-85.
For example, while a singular e-mail itself might not violate any employer policy, it may be that a grouping of e-mails does constitute a violation (e.g., abuse of the e-mail system). At that point, the public interest in such e-mails becomes strong.
I am, of course, aware that this case was initiated by record subjects under § 19.356(1), and not record requesters under § 19.37. Justice Bradley accuses me of adding "confusion rather than clarity" by clarifying the rights of record requestors under this opinion and § 19.37. Justice Bradley's concurrence, ¶¶ 153, 157.
But the complicated nature of this case (represented by four different writings and no majority opinion) means that clarity in the actual operation of the principles we announce is critical. My efforts here are aimed at making sure the public knows that under our holding, it still can seek judicial review of withheld e-mails that the custodian determines are purely personal.
Though accusing me of "misconstruing" the lead opinion, and leaving "confusion" in my critique of the lead opinion's approach (see infra note 12), Justice Bradley appears to agree with my analysis regarding whether the e-mails here are records, the application of the balancing test, and the rights of record requesters under § 19.37. Her staunch defense of an opinion she does not join is all the more perplexing.
The lead opinion's approach, had it been adopted by a majority of my colleagues, would have dramatically reduced the transparency of government and would sanction the withholding of government records in ways that are contrary to the purposes of the statute.
The lead opinion concludes that where the content of e-mails is purely personal and does not evince a violation of law or policy, such e-mails are not records under § 19.32(2). Lead op., ¶ 23. In addition to being unfaithful to the text of § 19.32(2), this approach would lead to results that should not go unnoticed. The lead opinion's approach would, as a practical matter, give record custodians the final say on whether withheld e-mails are records, including the determination of whether such documents violate any law or employer policy, and whether they are even personal e-mails at all.
Wisconsin Stat. § 19.35(4)(a) requires the custodian to "notify the requester" of a "determination to deny [a] request" "upon request for any record." (Emphasis added.) The duty to notify a record requester of a withheld record is clear. See, e.g., Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179 (1979) ("If the custodian gives no reasons or gives insufficient reasons for withholding a public record, a writ of mandamus compelling the production of the records must issue."). However, I can find no case suggesting a custodian must disclose the existence and nature of non-records. Under the current state of the law, it appears that a record custodian need only notify the record requester when it withholds a record, not when it withholds non-records. *651Unless the custodian voluntarily chose to provide notice of non-records he or she did not release, the record requester would have no knowledge anything was withheld. Thus, the lead opinion's approach would, as a practical matter, make the withholding of purely personal e-mails effectively unreviewable.
Moreover, under the public records statute, elected officials are the legal custodians of their own records and the records of their office. Wis. Stat. § 19.33(1). This means that under the lead opinion's approach, if a citizen sought e-mail records from, for example, the Governor or his office, the Governor could simply determine that certain e-mails are not records, and then not disclose the existence of those e-mails to the record requester. Such an outcome would constitute an unacceptable shutter over the window of transparency mandated by the legislature.
Thankfully, four members of this court conclude that such e-mails are public records. As such, the lead opinion's approach is not the law.