Are all emails stored on government computers automatically “public records” subject to disclosure under state and federal Freedom of Information Acts (“FOIA”)? In a sharply divided opinion, the Arkansas Supreme Court recently said no. Pulaski County v. Arkansas Democrat-Gazette, Inc., No.07-669 (Ark., July 20, 2007). The majority held that it all depends upon the content of the email, not its location in a government computer. Some emails written and received by government employees are personal in nature, and have no “substantial nexus” with government activities. For that reason, they are not considered “public records” and thus are not subject to disclosure under FOIA.
In this case, a newspaper requested all emails from a management employee of the county who had recently been arrested and accused of embezzling $42,000. Before his arrest, and the FOIA request, the employee deleted many of his emails. Deleted, but not fully erased, and certainly not gone. A computer tech for the county was able to restore them. The county then produced most of his emails, but withheld others that were “of a highly personal and private nature.” They were emails to and from a woman with whom the accused manager was having an extramarital affair. This “other woman” also happened to work for a company who was a vendor of the county.
The newspaper naturally wanted to see these emails, and argued they must be presumed to be public records because they were written by a government employee during working hours on government computers, and were located and maintained on government computers. The trial court agreed and held that:
Because the emails at issue are maintained in a public office and are maintained by public employees within the scope of their employment, they are presumed to be public records according to the Freedom of Information Act.
Based on the facts before this Court, the emails at issue are public records because they involve a business relationship of the County and are a record of the performance or lack of performance of official functions by Ron Quillin during the times when he was an employee of Pulaski County.
The county, and the girlfriend who intervened in the suit as “Jane Doe”, asked the court to look at the withheld emails in camera. They wanted the judge to determine whether the emails in fact pertained to county business, as he presumed, or were instead just “monkey business” with no relevance to any kind of county activities, legal or illegal. The judge declined to do so, and entered an injunction giving the county 24 hours to turn over the emails to the newspaper. The county and Jane Doe immediately appealed.
The Arkansas Supreme Court reversed and remanded the case back for the judge to read the letters in camera. The appeals court noted that since the trial court had declined to review the emails, they were not in the record, and so it was impossible to “discern whether some emails at issue were purely business emails while other emails were purely personal in nature.” The Arkansas Supreme Court held that:
[I]n this particular case, it is necessary to conduct an in camera review of the e-mails to discern whether these e-mails relate solely to personal matters or whether they reflect a substantial nexus with Pulaski County’s activities, thereby classifying them as public records. See Griffis, supra. Both parties agree that the definition of “public records” is content-driven. The only way to determine the content of the e-mails is to examine them. In this case, no court has reviewed the e-mails at issue. Absent such a review, we have no record on which we can determine the nature and content of the requested documents.
Rather than relying on Pulaski County or Appellee to make the determination of whether the documents are public, it is necessary to have a neutral court make this decision. See Griffis, supra. Accordingly, we remand this case to the circuit court with instruction to conduct an in camera review to determine if these e-mails “constitute a record of the performance of official functions that are or should be carried out by a public official or employee” thereby making them “public records” pursuant to the FOIA. We ask the circuit court to address this matter forthwith.
The majority decision followed other courts around the country that use content-driven analysis to determine when a document is a public record for purposes of FOIA type laws, both state and federal. State v. City of Clearwater, 863 So.2d 149, 154 (Fla. 2003) (A case involving personal emails where the Florida Supreme Court held that it is absurd to classify household bills or notes about personal conversations as public records simply because they are located in a government office); Denver Publ’g Co. v. Bd. of County Comm’rs, 121 P.3d 190 (Co. 2005) (A case involving sexually explicit and romantic emails where the Colorado Supreme Court held that “[a]n analysis of the messages based solely on the context in which they were created, without an explanation of the content of the messages, is insufficient to determine whether the messages are public records”); Griffis v. Pinal County , 215 Ariz. 1, 152 P.3d 418 at 421-22 (Az.2007) (The Arizona Supreme Court held that it was absurd to apply FOIA to all email, even private email, just because it is in government computers; purpose of FOIA is to “open government activity to public scrutiny, not to disclose information about private citizens.”); Bureau of Nat’l Affairs, Inc. v. United States Dep’t of Justice, 742 F.2d 1484, 1486 (D.C.Cir.1984) (personal appointment materials, such as calendars and daily agendas, are not agency records under the FOIA).
The newspaper and three justices of the Arkansas Supreme Court did not agree with this result. They thought the emails must be presumed to be public records, as in the words of dissenting Justice Tom Glaze:
[T]he personal and professional relationship between Quillin and Doe may have affected or influenced Quillin’s performance and his expenditures of county funds, the communications between them constitute a record of the performance or lack of performance of official functions carried out by a public official or employee.
Under the plain language of the statute, Quillin’s emails were presumed public records, because information is not exempt from the FOIA unless specifically exempted under the Act or some other statute.
Because the records at issue are plainly public records, and neither the County nor Doe has rebutted the statutory presumption compelling that result, remanding the matter for an in camera examination is unwarranted and a complete waste of time. The majority’s position unnecessarily prolongs the process and increases the expenses of a FOIA request, and in so doing needlessly infringes upon a citizen’s right to obtain public records. The Freedom of Information Act simply does not require an in camera inspection in these circumstances, and instructing the lower court to perform such a review thwarts the rights of Arkansas’s citizens to access records that, simply stated, should be public.
The minority dissenters were not concerned with the privacy rights of “Jane Doe” as to the deleted emails forensically restored from her lover’s computer. They apparently felt her rights were outweighed by the public’s right to know, and the newspaper’s right to sell sensational stories of the romantic life of county employees accused of theft. Besides, dissenting Justice Annabelle Imber reasoned that all of these emails would eventually be made public anyway in the subsequent prosecution of the accused.
