*1 v. COUNTY PULASKI DEMOCRAT-GAZETTE, INC.; ARKANSAS Doe, Intervenor
Jane
Stone and Alison for Dennington, appellee. Hendrix, Blake for intervenor Doe. J. Jane Gunter, Jim This arises from an order of the appeal Just Pulaski Pulaski Circuit Court certain e-mails to be ordering released because constitute records” under the Arkansas “public Freedom of Information Act at codified Ark. (FOIA), Code Ann. 25-19-101 et On 2005). Pulaski seq. (Supp. appeal, County argues circuit court erred follow issued fading mandate 20,2007, this court after we remanded the case on for an in camera July review the e-mails. Doe that the circuit argues court erred in Jane
2 19 her e-mail as violates right the release of certain messages, ordering raise these issues that she has She also maintains standing to privacy. order affirm the circuit court’s releasing under the FOIA. We in this waived her and hold that Doe has rights e-mails privacy Jane case. at in our The facts of this case are set forth length July Pulaski v. Arkansas Democrat- curiam See opinion. per Gazette, 718 (2007) curiam). 260 S.W.3d (per events at issue in this was Throughout with Government Solu a contractual e-Management tions, Inc. Ron Quillin, (GEMS). County Comptroller Services, *3 and Director of Administrative represented Doe in this contractual relationship. represented Jane and Doe entered into a romantic Quillin GEMS. was Quillin the course of this business during relationship. respon for the of funds from the to GEMS. On sible flow 4, 2007, fired his who had been from with Quillin, position June was arrested for County, allegedly embezzling approximately $42,000 from Pulaski County. 14, 2007, Democrat-Gazette, On Arkansas Appellee June
Inc., Court, filed a in the Pulaski Circuit complaint that certain e-mails were to alleging pursuant 25, 2007, the circuit court ruled that the e-mails FOIA. On June records and ordered them to be released to the On we remanded the case with in- Democrat-Gazette. appeal, the e-mails in structions to the court to review camera.On 2, 2007, the trial court entered its order all of August releasing e-mails of six with exception graphic, sexually explicit photos a and seven e-mails sent on chain of forwards.1 Pulaski County now appeals.
I. Doe’s issues Jane outset, of At we turn to the issue whether Doe has Jane to the disclosure of the e-mails. Doe asserts that contest standing to raise an she has a she has FOIA issue because standing personal stake in the outcome of this that if the She argues proceeding. released, e-mails are she will suffer to her damage irreparable 1 sought The Democrat-Gazette has not disclosure of either the sexually explicit regarding issue these e-mails We do not address forwards; thus, is moot. any photos McEwen, v. moot issues. Alexander 367 Ark. 239 S.W.3d519 241,
220 and the e-mails could be for the reputation exploited prurient Further, interest of others. she asserts that these contain messages of matters that would constitute an unwarranted invasion personal her constitutional to the Democrat- right privacy. response, under the Gazette Doe has no FOIA Arkansas argues standing because she is a citizen of Missouri. is a matter of law for question standing decide,
court to
and this court
reviews
law de novo.
questions
Moore,
498,
Ass’n,
Arkansas
Retailers
Inc. v.
369 Ark.
256
Beverage
S.W.3d
488
claimant who has
stake in
(2007). Only
personal
Here,
the outcome of a
has
Id.
not
Doe is
controversy
standing.
records;
access to
she is
attempting
gain
merely trying
block the disclosure of e-mails that
sent and
she
received. There
fore,
Thus,
she has a
stake in the outcome of this case.
personal
Arkansas,
even
not a
she is
citizen of
we
hold that she
though
to assert a
interest.
standing
privacy
We now turn Doe’s constitutional argument. Specifically,
Doe
that disclosure of the e-mails
argues
constitutes a violation
her constitutional
right
an individual’s
privacy
recognized
interest in
disclosure of
matters
avoiding
personal
by government.
Services,
425,
See Nixon v. Administrator General
433 U.S.
455
Rock,
v.
(1977);
Little
McCambridge
766
City of
Roe,
S.W.2d
909
Whalenv.
429 U.S.
S.Ct.
(1989) (citing
trial,
As the
from a
(1977)).
bench
our
present appeal
*4
standard of
on
review
is not whether there is substantial
appeal
court,
evidence to
the
of the
but
the
whether
support
finding
erroneous
the
judge’s findings
clearly against
Williams,
Farms, LLC,
the
of
evidence.
v.
preponderance
Wayne
368 Ark.
In the instant the trial court ruled that Doe had no when with expectation Quillin on a privacy conversing county or the software vendor’s business e-mail. computer We simply cannot that trial the court erred in this the say because regard romantic between and Doe was Quillin relationship indistinguish intertwined with the ably business the between relationship and GEMS. The on cases relied Doe are by simply as neither those cases facts as inapposite, presents peculiar the where facts of this this case. Under found in those issues, matters and business personal both often contained messages she Doe, waived any right privacy for the County, a contractor have had. may court that the circuit we note Before point, leaving and Quillin between e-mail exchange found that one particular a.m., is evidence 12, 2006, at 9:44 March beginning
Doe sent on explicit sexually lost privacy. that Doe any expectation This is work now. Doe’s “Hey concludes by response: exchange email, “Delete, at 9:58 a.m.: then Quillin responds goofball!” Doe knew delete, that .” This e-mail delete . . . exchange proves continued to she e-mails could become yet the risk that the public, therefore, lost any e-mail Quillin county’s computer, expectation privacy.
The mandaterule Next, the sole issue raised by County, we turn to its mandate circuit court violated our by basing that the namely between the overall context of conclusion on of the e-mails. A lower Doe rather than the content Quillin court as law or decree of a court is bound higher by judgment into decision of the court case and must higher of the carry that court. to the mandate issued Pro-Comp execution pursuant LLC, Enters., 237 S.W.3d Inc. v. R.K. Mgmt., remand, court to conduct an we instructed the circuit On a record of to determine if the e-mails “constitute in camerareview that are or should be carried of official functions the performance them official or thereby making out employee,” to the FOIA. See Pulaski County, supra. records” “public pursuant became The circuit court noted in its order apparent “[i]t Nevertheless, it not be of each e-mail would listing expedient.” e-mail for content as circuit court reviewed each that the appears instructed. order, it is clear to us that Based on the circuit court’s directive, court followed our put the trial does not The record forth no evidence to simply contrary. circuit court failed to assertion that the the County’s support mandate issued on remand. follow the *5 court further that the circuit argues County to on whether e-mails were subject
erred in its decision basing record shows that rather than content. The disclosure on context content, there on and court reviewed the e-mails based the circuit Further, the extent that the County in that to is no error regard. 222 that the circuit erred in court its factual decisions
arguing whether e-mails relate to matters or the whether solely personal activities, reflect a substantial nexus with the and are County’s disclosure, the therefore to has County failed to circuit that the court was argument provide convincing in this We will an erroneous not consider clearly regard. argument, one, even a the constitutional when no con- appellant presents in its Childersv. 369 Ark. vincing argument Payne, support. reasons, 129 S.W.3d For these we will not reach the (2007). merits of Pulaski arguments. County’s
Affirmed. and concur in and dissent JJ., in Imber, part part.
Danielson J., Glaze, dissents. E. in in part, Danielson, concurring dissenting Just ice, ice, sailed,” that the
Paul part. Despite any already “ship I write clear to make that I with the disagree majority’s handling this case the from While I concur with the very beginning. majority’s decision that Pulaski and the have not intervenor demon- strated the erroneous, circuit court’s I findings continue adhere to that Pulaski my original opinion the intervenor failed to rebut that the statutory presumption contested emails constituted records in initial hearing addition, before circuit court. In both intervenor, the contested emails to the failing proffer court the initial failed to make a record sufficient to during hearing, their for from the preserve arguments For these appeal, beginning. reasons, I concur in dissent part part. that, I must out from
Initially, point beginning, lost of and the Arkansas majority completely Free- sight ignored dom of Information Act (FOIA) scheme our case statutory law. The remand this matter to the circuit court for an in camera review was erroneous and the rebuttable completely disregarded established the General in Ark. presumption Code Assembly Ann. 25-19-103(5)(A) 2005).1 Section 25-19-103(5)(A) (Supp. defines records” and establishes the “public presumption: so, doing ignored completely long-standing our tenet of law that duty See, appellant’s bring up is the sufficient e.g., a record to demonstrate error. v.MIC Barrett, 855 S.W.2d326
223 sounds,films, means recorded (5)(A) “Public records” writings, information, or or data compila- electronic tapes, computer-based law to be or otherwise by kept kept tions in medium any required a record the or lack performance and that constitute performance are or should be carried out a official by public officialfunctions or a or other or agency, any agencywholly employee, governmental funds or funds. All by partiallysupported public expending public recordsmaintainedin or withinthe scope public publicemployees offices their shallbe to be records. employment presumed Ark. Code Ann. 25-19-103(5)(A) 2005) added). (Supp. (emphasis that, record, The statute makes clear while an very presumed public email will not constitute a record if it does not constitute a record of an or lack of employee’s performance performance official functions. Here, records; the emails at issue were to be presumed
thus, it was that the emails were be presumed writings required or otherwise and were a record of the kept kept performance lack of of official functions em- performance government emails, In order to the release of the Pulaski ployee. prohibit and the intervenor had to rebut that but County presumption, Thus, records, did not.2 the emails were to be presumed disclosure, which were and the circuit court so correctly short, held in the initial the circuit court was correct hearing. the first time. However, instead of the circuit court’s affirming ruling matter, remanded, the majority Pulaski giving
intervenor a second bite at the That is the at which this apple. point case went and the reason I continue awry, to dissent in part.
Nonetheless,
merits,
with
to the
respect
assuming
and the intervenor had
to rebut
attempted
2 While
might argue
one
that Pulaski
to rebut the
County attempted
presumption
when it
the circuit
hearing,
court to review the emails in the initial
requested
failed to make its record when it faded to
the emails it contested and that the circuit
proffer
court declined, at that
to review.
time,
Thus, the emails were never made a
of the record
part
during
hearing.
the initial
In order to make a record, one must make a
The failure
proffer.
evidence so that this
prejudice
court can determine
review of the
proffer
precludes
evidence on
See
Sporting
v. Oshman’s
Goods
Inc., 327 Ark.
Servs.,
appeal.
Duque
(1997).
S.W.2d 179
Moreover,
it is the
stated,
not that of the
already
appellant’s duty,
circuit
proceedings
court, to demonstrate error in the
bring
below and to
a record
up
sufficient to
See, e.g., MIC v.
demonstrate error.
Barrett,
presumption during hearing, decision, court’s which was rendered remand.3 I must upon *7 that I am in no sent from or email way emphasize stating every delivered to a email account government government computer FOIA, constitutes a record under the codified at Ark. Code public - Ann. 25-19-101 25-19-109 2002 & So 2005). (Repl. Supp. §§ order, the circuit court found in its initial wherein it said: clear,however,
The Court wants to make in facts this caseare determinativeas to the that these emails finding public records. In no is this Court that all emailson Pulaski way finding are, fact, short, in records. In County computers those public decisionsmust be made on a case casebasis. by said, me, case, That it is clear to under the this and as the being facts of found, circuit court that the emails at issue constituted records public Thus, and were to disclosure under the FOIA. in an effort to subject for future FOIA cases and in an effort to provide guidance prevent cases, similar time in such I believe some delays analysis necessary that the circuit court’s decision was not support my position erroneous. stated, record, As a record ais already (1) public required
be or otherwise (2) that constitutes a record of the kept kept, or lack of of official performance functions that are or performance should be carried out a official or See Ark. by public employee. Code Ann. The emails at 25-19-103(5)(A). issue were such kept, that the first element of the definition was met. At in issue case, cases, instant and in most FOIA is whether or not the emails at issue were a record of or lack of performance performance case, official functions Based on the I Quillin. would by facts of hold that the emails were. that, It is further once a my opinion public agency was, to rebut the that a record or records attempted presumption were, record, which introduction necessarily requires record, of the records into the it is incumbent on the challenged circuit court to examine each contested record to determine record, whether or not it constitutes under the definition 3 The proceedings same holds true for the on remand; Pulaski intervenor did not being given to rebut the even after a second chance attempt presumption, to do so of this court. in the statute.4 That is because each record must constitute a record or lack of of official functions performance performance order to be disclosed under the FOIA. court, remand,
In this the circuit reviewed the emails and found that the emails reflected on the performance Further, official functions Quillin. found that all of the emails should be released because constituted a record of the of official functions and because it was performance impossible discern which email or of email was particular portion strictly court, and bore no to business. The circuit personal however, did find that certain emails containing explicit photo- were not to release and that seven other contested graphs subject emails were not to disclosure.5 court,
I with the circuit but for different agree reasons. *8 Much has been made of whether of the emails were many personal, or That is of no private, sexually moment as explicit. absolutely such are irrelevant in the context of designations a FOIA simply case. A review of the scheme reveals no statutory consideration as information, to whether the the disclosure of which is contested by is or The public agency, personal, sole private, sexually explicit. consideration in whether the record is a determining record public and one to disclosure is whether the record itself consti- tutes a record of the or lack of of a performance performance official. other consideration is erroneous. public Any A review of the circuit court’s with to the findings respect in emails the instant the disclosures of which were challenged intervenor, by reveals that each email was or lack recording Quillin’s in his performance performance official function. Each contested email’s content demonstrated involvement, work, outside of Quillin’s with an individual whose was, at least in job contract part, dependent upon County’s with her a contract which was overseen employer, Quillin.6 For by 4 This of agency course that the has the records it does not consider presumes proffered to be to the circuit court for such a determination, which was not the case public clearly during hearing the initial in the case at hand. court’s decision as to those challenged records has not been either by recognized majority. party, 6 As I have said, on the facts of this case. Were a is official my opinion premised public to have a of sorts with someone not so intertwined to the employee closely sending funds, emails similar to the ones at issue I here, could not expenditure public say reason,
that I with the circuit court’s conclusion and would agree court, affirm the order of disclosure rendered the circuit as the .7 does
Our General has Assembly clearly pronounced necessity of the FOIA to review business and how it is conducted: public
It is
in
vital
a democratic
that
businessbe
society
public
per-
formed in an
manner so that the electors shallbe
open
public
advisedof the
officialsand of the
performance
public
decisions
that are reachedin
and in
public
To-
activity
making public policy.
end,
ward this
is
chapter
for them or
adopted,making possible
their
to learn and to
representatives
the activitiesof their
report fully
officials.
Ark. Code Ann. 25-19-102
As we
2002)
added).
(Repl.
(emphasis
said,
have
our role in
whether
constitutes a
determining
something
record” is limited to
See,
the FOIA statute.
“public
interpreting
e.g.,
Perroni,
251, 188
end,
Fox v.
358 Ark.
S.W.3d 881
To that
we
construe the FOIA to
its broad and
liberally
laudable
accomplish
business be
in an
purpose
performed
open
Inc.,
manner. SeeArkansas
Fin. &
v.
Assocs.,
Admin.
Dep’t
Pharmacy
Imber, J., joins. The Arkansas Democrat- Glaze, dissenting. Ju e,e, sti sti c c for the Pulaski email request
Tom records its generated by Quillan, Ron three and a half employee, months The has ago. still not received them. FOIA newspaper shall, law is so the designed custodian the records within twenty- four hours of a for the receipt examination request copying records, make efforts to the fullest extent to determine possible whether the from disclosure and make efforts to exempt notify persons making request the record of that decision. See Ark. Ann.. Code 25-19-105(c)(3)(A) (Repl. § seealsoArk. Code 2002); Ann. 25-19-107(b) 2002) (Repl. (setting out the for for process review those whose expeditingjudicial requests for records have been denied). done but nothing records, accessto the to the intent of the Act. delay contrary As out in Paul Danielson’s pointed opinion, Justice court exacerbated the this case when handed delays 20, 2007, down a 4-3 curiam per opinion July remanding matter to the circuit court for'an in camerareview. Daniel- Justice *10 son is correct in that the lost saying majority sight completely law, and the FOIA’s scheme and our case ignored statutory when the circuit court’s to rebut never Pulaski County attempted that the emails in public question ruling findings records.1 view, when the case became this complex my simple in a round hole. In court to peg attempted place square essence, to the has done is public employee what majority permit where it is material on a public computer, place pornographic record, but, the to be a by allowing employee public
presumed that has enabled public call the material or “private,” “personal” Act. an and intent of the Such to subvert the purpose employee under should not be conduct protected employee’s inappropriate have, ruled, it that had should circumstances. If the majority any the com- and material county’s salacious placed photographs hours constitute working a county employee during puter by records, that em- could learn how readily taxpayers public business. It his work and conducts public’s ployee performs that, such conduct is reasonable to believe when also inappropriate that abuse will end. public exposure, is vital The of Information Act Freedom provides “[i]t in an business be in a democratic performed society public shall be advised of the manner so that the electors open and of the decisions that reached officials performance in Ark. and in See Code activity making public policy.” 2002). Ann. 12-19-102 majority’s overly prolonged (Repl. the true intent of this case has subverted treatment of completely Act; indeed, Arkansas Freedom of Information instead FOIA, court’s actions of the objectives meeting goals in an absurd of the Act’s have resulted purpose. application Oh, all! irony willingness to assume Pulaski Danielson’s to show a opinion appears Justice hearing. I records at the initial
made some to rebut presumption attempt disagree with such of the facts. any interpretation