Pulaski County v. Arkansas Democrat-Gazette, Inc.

e-mails to sending all rights by 3. Did the intervenor waive privacy a county computer? to do an in camera review of

4. Is it this court e-mails? business distinguish e-mails to Further, from the we order that the have seven days parties date of to submit this order simultaneous briefs and three days also submit record suf- shall respond simultaneously. Appellant ficient for to decide within this court the aforementioned issues seven days.

Motion to motion for granted; expedite stay appeal pending granted. C.J., would JJ.,

Hannah, Imber., deny Danielson, stay.

PULASKI COUNTY v. INC.; DEMOCRAT-GAZETTE, ARKANSAS Doe, Intervenor 07-669 S.W.3d Court of Arkansas

Supreme 20, 2007 delivered Opinion July Burnett, Mitchell, Karla M. Amanda M. D. Chastity Scifres, Office, Pulaski for County Attorney’s appellant. PLC, Anderson, III, Williams & Askew by: S. Clayborne Jess

Stone, and Alison for Dennington, appellee. Hendrix, Blake for intervenor Doe. Jr., J. an order of the Pulaski

Per Curiam. This arisesfrom appeal Court, certain e-mails be dis- Circuit County providing Act set forth closed to the Freedom of Information (FOIA) pursuant in Ark. Code Ann. 25-19-105 On 2002). (Repl. appeal, Appellant that the circuit court erred in County argues holding remand e-mails were records” as defined FOIA. We the circuit court an in this case to with instruction perform camera review of the e-mails. 4, 2007, On Ronald former Pulaski Quillin, June Services, and Director Administrative was arrested Comptroller $42,000.00 allegedly embezzling approximately had terminated with Pulaski

County. employment 30, 2007, on and was the Arkansas April employed by Department 5, of Flealth and Human 2007, at the time his arrest. Services On June Democrat-Gazette, Arkansas its Appellee through reporter, Van made a written FOIA to Pulaski Jensen, request County Karla Burnett her to disclose “all e-mail and other Attorney asking recorded communication between former Pulaski County Comp- troller and Director of Administrative Services Ron Quillin Solutions, of Government a software employees contractor for Pulaski e-Management from 2005 to the termination County, Jan. of Mr. with the Quillin’s employment county.” deleted all of the e-mail files contained on his to his termination. The e-mail were not computer prior messages saved in a central location or backed on medium. up any computer made, Before the FOIA was had the request County 12, 2007, deleted e-mail files restored. On Pulaski County June released some but not all e-mail correspondence requested FOIA, under the that the e-mails not Appellee contending released do not constitute records” within the meaning Ark. Code Ann. 25-19-103. 14, 2007, On filed a Appellee complaint against June and Pulaski Karla Burnett

County County Attorney pursuant the FOIA. That same a motion to dismiss filed on was behalf day, 19, 2007, of Pulaski Karla Burnett. On County Attorney June was held before the Pulaski hearing Circuit Court. At County all that Pulaski Karla hearing, parties agreed County Attorney Burnett should be dismissed as a defendant in the matter and that Doe, Solutions, an of Government employee e-Management Jane should be allowed to intervene in the matter. The court heard from David editor of the testimony Jensen, Bailey, managing Democrat-Gazette, Davis, Arkansas and Dan a hardware analyst with Pulaski Information who maintains the County Systems network file servers for the county computer system. 25, 2007, On the circuit court entered its final judg- June

ment in favor of The circuit court concluded that the Appellee. withheld e-mails were records and ordered them released to within hours of its Appellee Pulaski twenty-four entry judgment. record, filed a notice of County appeal, designation and a motion for The circuit stay court denied the pending appeal. motion for on 2007. Pulaski then filed stay June motions to and for with this court. expedite stay pending appeal We the motion to granted and ordered the expedite, stay pending We also ordered the to file appeal. simultaneous parties briefs issues on addressing following appeal: intervenor, Doe, 1. Do Pulaski and the havestanding to raisean FOIA issue? 2. Are e-mailsin a personal countycomputer exempt FOIA? so, If under what circumstances? 3. Did the intervenor all waive privacy e-mailsto rightsby sending a county computer?

4. Is it for this court to do an in camera review of the e-mailsto distinguish frombusiness e-mails? First, because admits in its brief that Appellee reply has we need not standing, address this issue. It is necessary to conduct an in camera review to determine whether the e-mails records, at issue are and thus should be public disclosed to pursuant the FOIA. We cannot decide the of issues whether the Intervenor has or whether the Intervenor standing has waived any privacy until we know the rights outcome of the in camera review. Therefore, we will not address these issues.

We now turn issue of whether e-mails personal in a are county from the computer FOIA. exempt we Though have asked the to brief the issue of parties whether in a FOIA, county we conclude computer exempt that Rather, issue in this case is not the issue here exemption. whether the e-mails are records” “public FOIA. pursuant case, asks us to reverse and dismiss this that arguing the trial court erred in that the e-mails were finding “public

439 this it that argues Alternatively, the FOIA. as defined by records” an in to conduct the instruction with be remanded case should fact, do, documents if these to determine camera review lack of or of the performance a record “constitute out a be carried by public are or should that official functions records” them making thereby official or employee,” circuit arguing to the FOIA. responds, Appellee pursuant at issue are that the e-mails public determined court correctly and court’s decision affirm the circuit asks us to records. Appellee and court’s injunction. the circuit judgment lift the stay case, the FOIA statutory this we are asked interpret In review issues of records. We the disclosure regarding provision Smith, 366 v. Fort de novo. Harris construction City statutory 277, review of an issue On 234 S.W.3d Ark. of the bound the decision we are not statutory interpretation, court; however, that the trial court an absence of a showing trial law, will be erred in its interpretation interpretation 251, Perroni, Ark. Fox v. as correct on appeal. accepted Weiss, 881 (2004) S.W.3d (citing Bryant to accom- We FOIA (1998)). S.W.2d 902 liberally interpret be business its broad and laudable public purpose plish Furthermore, Id. in an manner. performed open public Id. construes the Act in favor of disclosure. court broadly FOIA, at Annotated 25-19- codified Arkansas Code § “all records” for 101 et public inspection opens public seq., defines The FOIA 25-19-105(a). Ark. Code Ann. copying. records as follows: public sounds, films, recorded (5)(A) writing, “Public records” means information, data or compila- electronic or tapes, computer-based law to be or otherwise kept tions in medium any required by kept lack of that constitute a record of the or perfor- functions that are or should be carried out by mance of official other any officialor employee, governmental agency, public funds or expending agencywholly partiallysupported public or by All records maintained in offices funds. of their shall employment presumed within employees scope to be records.

Ark. Ann. 25-19-103(5)(A). Code §§ to the our commitment

While general propo- recognizing in favor of should be construed sition that the FOIA broadly to counter- construed in order disclosure and narrowly exceptions balance the interests of the bureau- self-protective governmental we are also aware of the need for a racracy, of interests to balancing effect to what we to be the give intent of the perceive General so, In a common sense Assembly. doing must be taken. approach Mars, 830 S.W.2d Bryant The intent behind the legislative FOIA is stated at Ark. Code Ann. 25-19-102: It is vital in a democratic that society business be public performed in an open manner so that the electors shallbe advised of officials and of the decisions that are reached in and in public activity making public Toward this policy. end, them, it chapter adopted, making possible or their representatives to leam and to report folly activities of their officials. Act, In The Arkansas Freedom the authors state: of Information While the FOIA expressly covers records law to be “required by kept,” legislature did not intend apparently record every maintained an be by agency subject to pubhc inspection, because the “performance” in language Section 25-19-103(5)(A) limits the term “otherwise While some state kept.” FOI statutes seem to include record held every an agency of its regardless or origin content, the Arkansas act is similar to statutes cover those only records made or received “in connection with” to” the “relating duties. agency’s of the presence term in “performance” Section 25-19- 103(5)(A) invite may a narrower interpretation “pubhc records.” For while example, notes made officials presum- would ably record under a pubhc definition that did not include the “performance” language, Attorney General has indicated that such notes fall sound, outside Arkansas FOIA. This result is particularly light use of the term “scope employment” in Section instances, 25-19-103(5)(A). however, There be may which the of a personal activities official pubhc employee hnked inextricably to his or her role. governmental Peltz, Watkins & The Arkansas Freedom JohnJ. RichardJ. ofInformation Act, 91, 93 (4th ed. see also Ark. 2004); Gen. No. 095 Op. Att’y (2005) the status established by record of public (stating presumption within the fall do not otherwise the records rebutted if can be FOIA a sentence, i.e., not “constitute if do they the first found in definition official func- lack of the performance record of situation of address the gov- and Peltz Watkins tions”). specifically and work- both e-mail for their personal using ernment employees follows: related purposes FOIA, not be should problem the Arkansas the face of

On definition to are limited Public records difficult to resolve. of official or lack of performance “record[s] functions.” if an is state using can be made that employee An argument that use reflects correspondence, resources for personal computer functions,” either because state of official the “lack of performance or because resources are being misappropriated computing matters while on the state clock. is handling personal employee least, e-mail at is a stretch. Given argument With regard their office of both employees using prevalence private will be likely correspondence, employees computers personal e-mail a reasonable of privacy personal able to assert expectation And even absent such even if it is on a generated public computer. interest, a for such extracurricular a defensible FOIA legally request — e-mail statistics such only e-mail be satisfied might by providing or even the “to” and as the size and number personal messages, ‘ ’ — reflect ‘from’ fields of which would messages non-performance content redacted. of official duties even with personal Peltz, at 437-39. See Watkins & supra, that when whether determining County argues record, at the

document is a we must look content document, that we rather than where it is located. Appellee agrees content, look at the but also that we must at must look argues context, “the circumstances transmis- surrounding including e-mails, e-mails, the location of the sion of subsequent Mr. in his facts that have come to regarding position light as a official.” in deter- states have used a content-driven analysis

Other record. The Florida whether a document mining held that e-mails do not fall within Court has Supreme definition of records” virtue disclosure subject on a Statev. system. placement government-owned computer Clearwater, Clearwater, In (Fla. 2003). So. 2d city employ- ees reviewed their e-mails and sorted them two into categories, and A from Times personal public. reporter Publishing Company all e-mails sent from or received two requested over the by city employees network. Even the City’s City computer though copied them, the that it e-mails and Times asserted public provided Publishing entitled the was to all stored on the generated by The Florida Court that City’s held the computers. Supreme factor of whether a document is a record determining public record, to disclosure is the nature the of not its subject physical “ location. The court concluded that e-mails are not ‘personal’ ‘made or received to law or ordinance inor connection pursuant ” and, therefore, with the transaction of official business’ do not fall within the definition of records in Florida Statutes public Annotated section of 119.011(1) virtue a by on placement government-owned computer Colorado system. Similarly, Court has held that analysis based Supreme messages “[a]n created, on context which were without solely they an of the content of the explanation is insufficient to messages, determine whether the messages records. Denver public Publ’g Comm’rs, Co. v. Bd. 121 190 (Colo. P.3d 2005). of

The Arizona Court has also used a content-driven Supreme e-mail analysisregarding messages: however, records, -The broad definition of is not public unlim- ited. The records law all public officialsto make requires public maintain records to “reasonably of all provide knowledge undertake in the Carlson, theirduties.” activities they furtheranceof 490, 687 141Ariz. at P.2d at 1245 (emphasisadded). That definition does not of a documents encompass purely private personal Instead, nature. those only documents a having “substantial nexus” records. Salt awith government activities as agency’s qualify public River, 168 Ariz. at 541, 815 P.2d at 910. nature and purpose “[T]he record. Id. at of document” determine as a its status Eckard, (quoting Linder v. 216, 152 815 P.2d at907 261 Iowa N.W.2d 833, 835 status, (Iowa 1967)). therefore, a Determining document’s a requires content-driven Because the inquiry. nature purpose status, of document determine its mere of a docu possession ment a officer does not itself make agency that record, id., document a nor does of expenditure public funds id. at document, 540-41, creating at P.2d 909-10. To made on note Every an absurd result: would create hold otherwise office,written located in a government paper, government-owned aon government- or composed pen, with a government-owned record. Under be a would presumably owned computer at while a employee list written by government analysis, grocery dinner, or a child’s work, a family to schedule a communication employee’s drawer in a government card stored in desk report was records law subject pubhc office would be disclosure. documents; such purpose never intended encompass not to disclose scrutiny, activity pubhc law is to open government id.; accordState v. City about citizens. See information private 149, 154 Clearwater, absurdity (Fla.2003) (noting So. 2d notes about conversations household bills or classifying in a government because are located they records simply pubhc Justice, Inc.v. United StatesDep’t Bureau Nat’l office); Affairs, cf. 1484, 1486 (D.C. Cir.1984) (holding personal appoint F.2d materials, not calendars and daily agendas, agency ment such as Act, 552 the Freedom of Information 5 U.S.C. records under (2006)). at 421-22 (Ariz. 2007) (en banc). v. Pinal 156 P.3d County,

Griffis that an in camera review is County argues in case to determine the content of the e-mails. Specifically, could not asserts that the circuit court’s finding in have been made without the e-mails reviewing question. Further, it that because the circuit court did not conduct contends record, review, in the an in camera the e-mails were not included therefore there is evidence in the record to the no support circuit court’s findings. that because there is no claim arguing

Appellee responds, fall under a an in camera review FOIA exemption, the is not It asserts that because of FOIA necessary. presumption records, the circuit court was correct that the e-mails are public brief, not an in camera review. In its reply Appellee conducting access to contends that such a review would further delay public the e-mails. held that the circuit court must review the relevant

We have to determine whether an FOIA information exemp- question Stodola, See, v. tion to disclosure applies. e.g., Johninson 423, Co. v. 374 Gannett River States (1994); Publ’g 872 S.W.2d 684, Comm’n, Ark. 799 S.W.2d 543 Arkansas Indus. Dev. the so that the circuit court In we remanded case Johninson, could an in camera review and then decide whether the perform information should released. While case does not present involve claim that the e-mails fall under an we FOIA exemption, hold that an in review camera is necessary. the nature and of a document with an Comparing purpose

official’s activities to determine whether agency’s required nexus exists See necessarily requires fact-specific Griffis, inquiry. Church (citing Phoenix Police supra City Scientology Dep’t, of P.2d Ct. (Ariz. 1979)). To make App. inquiry, while documents, maintaining privacy personal, non-public a court should an in camera review. Id. A neutral court perform should be the final arbiter what as a record. See qualifies the case Griffis, to supra (remanding court permit superior review the content of the e-mails in camera determine disputed whether were to the they subject records In Denver law). Publ’g, supra, romantic e-mails that involving sexually explicit were between the recorder and the exchanged recorder’s county assistant, the Colorado Court remanded the case Supreme after concluding

the court of failed to take into appeals account the nature of specific the e-mails and their individual content to if determine address they functions. An analysis messages created, based on context solely in which were they without an examination of the content of the is insufficient messages, determine whether messages are records.’ ‘public 121 P.3d at 202. Watkins and Peltz also address the issue in camera review, a determined stating records were able to requester “[i]f doubt articulate as to the of a record reliability segregation process, could court, obtain an in camera review requester which would not on the infringe to but which would employee’s right privacy, Peltz, suit.” See Watkins & require bringing at 437-38. supra, case, court, In the the circuit present its final judgment, stated:

Based on the evidence at the presented and all hearing matters record, the Court appearing makes of fact: following findings 8. It Finding is impossible discern whether some emails at issue were purely business emailswhile other emailswere purely personal Moreover, in nature. it is to discern impossible where business started correspondence and the personal stopped correspondence have been meetings may the emails. Personal with respect however, Court, makes no The business meetings. disguised concerning legitimacy or conclusion of law of fact finding such Any in the emails at issue. business matter raised any particular of this case. beyond scope question with Doe have may The relationship 9. Finding Jane of Pulaski Quillin’s Mr. as public employee affected performance Quil- influenced Mr. have may County. personal relationship reasons, For these lin in of funds of Pulaski County. expenditures Quillin between Mr. all of the aspects personal relationship and enmeshed in the business relationship Doe are intertwined Solu- between Pulaski and Government County e-Management tions, Inc. fact,

Based on the the Court makes foregoing findings conclusions of law: following 4.

Conclusion Because emailsat issue are maintained in a public office and are maintained within the by public employees scope to be records accord- employment, they presumed to the Freedom Information Act. ing However, 5. Conclusion the Court makes clear that it does not find or hold that and all emails on Pulaski any County computers are, fact, records. To the even with the contrary, statutory it is still examine the facts presumption, concerning on a emails basis. case-by-case Court,

Conclusion 6. Based on the facts before this the emails at issue are records because involve a they business relationship and are a record of the or lack of of official functions Ron times during when he was an of Pulaski employee County.

Both Pulaski and the Intervenor asked the circuit court to review the e-mails in camera. The circuit court subject e-mails, decided not and therefore the are to review e-mails e-mails, not included in the record. Without there reviewing is not evidence to the factual enough support findings “[i]t to discern whether some emails at issue were impossible purely business emails nature,” while other emails were purely personal and that “all of the between aspects Mr. personal relationship Doe Quillin are intertwined and enmeshed in the business between and Government relationship County Solutions, Inc.” Nor does the limited e-Management amount of evidence in the record the conclusion that “the e-mails at support issue are records because involve a business relation- they and are a record of the ship or lack of performance of official functions Ron the times during when he anwas of Pulaski employee County.”

We with the circuit court’s conclusion agree that not all records, e-mails on Pulaski computers that even with the it is still statutory to presumption, necessary examine the facts e-mails on a concerning basis. case-by-case However, case, we hold that in this it is particular necessary conduct an in camera review of the e-mails to discern whether these e-mails relate matters solely or whether they reflect a substantial activities, nexus with Pulaski County’s thereby them as classifying records. See Both Griffis,supra. parties that the definition of agree records” is content-driven. “public to determine the only content of the way e-mails is to case, examine them. In this no court has reviewed the at review, issue. Absent such we have no record on which we can determine the nature and content of the documents. requested

Rather than on Pulaski relying County Appellee make the determination of whether the documents are it is public, to have a neutral court make this decision. See Griffis, we remand supra. this case to the Accordingly, circuit court with instruction to conduct an in camera review to determine if these e-mails “constitute a record of the of official func tions that are or should be carried out official them employee” records” thereby making to the pursuant FOIA. We ask the circuit court to address this matter forthwith.

Remanded.

Glaze, Imber, dissent. Danielson, JJ.,

447 I dissent from the majori- Justice, dissenting. Tom Glaze, decision to remand this case. If the trial court’s decision ty’s remanded, and its is reversed or it will weaken FOIA seriously intent. legislative issue,

When this addressing majority public-records time considerable amount of and cases spends citing discussing laws; from other states those records” states’ involving “open however, those cases are from Arkansas’s easily distinguishable FOIA statutes and case law.1 Of more our General importance, court this have dealt with this issue Assembly public-records 1967, and its since when the Arkansas was enacted FOIA meaning and codified at Ark. Code Ann. 25-19-101 -109 (Repl. §§ court, & Our in the 2005). case v. Supp. City Fayetteville Edmark, 79, 304 Ark. 801 S.W.2d 275 (1990), emphasized intent of the FOIA as set out Ark. Code Ann. legislative 25-19-102, which as follows: provides §

It is vital in a democratic society business public in an manner performed open so electorsshallbe public advisedof the officialsand of the decisions public that are reached in and in public To- activity making public policy. end, ward this it for them chapter adopted,making possible to learn and to representatives the activitiesof their report fully officials. public The Edmark McCord, court out the case of Laman v. pointed 432 S.W.2d 753 (1968), first case in which this

court the FOIA. Laman held that there interpreted was no attorney-client FOIA information. The La- privilege concerning (Fla. For both v. 2003), State 863 So. 2d Clearwater, example, City of Griffis (Ariz. 2007), Pinal 156 P.3d 418 were concerned with abstract of law County, only questions regarding whether emails sent or received constituted records by public employees public because those emails were government-owned on a In simply addition, placed computer. definitions of records” are different in Florida and Arizona. Florida defines the term as“all photographs, documents, recordings, letters, books, sound films, data papers, maps, tapes, processing regardless software, or other material, form, characteristics, means physical of transmission, made or received to law or ordinance or in connection with the pursuant transaction agency.” of official business See Fla. Stat. 119.011 by any Notably, Florida’s nothing FOIA contains similar to Arkansas’s that records maintained in presumption offices or records. Arizona’s law does by public employees public-records not define the e.g.,Ariz. (2001 term. See, Rev. Stat.Ann. 39-121 to & 39-121.03 expressly §§ 2006). Supp.

man decision has served as the benchmark when our forty-year-old FOIA, courts are called the Act’s upon interpret particularly records. Laman, concerning provisions Quoting Edmark court stated as follows: rule,

As a statutes enacted for the benefit are to be interpreted most to the have favorably no hesitation in public----We asserting our conviction that the Freedom of Information Act was passed in the interest and is to be wholly public to the liberally interpreted end that its be achieved. praiseworthy purposes may clear, The theactis so so language thereis positive, hardlyany of need interpretation. 184-85, 204 Ark. at Edmark, 801 S.W.2d at 278 Laman, (quoting 404-05, Ark. at 432 S.W.2d at 755) (emphasisadded). case,

In the this court is asked to present again interpret of Arkansas’s FOIA application provisions regarding “public records.” See Ark. Code Ann. and Ark. 25-19-103(5)(A) Code § Ann. 25-19-105. Section 25-19-103(5)(A) follows: provides § films, sounds, “Public records” means recorded writings, tapes, electronicor computer-basedinformation, or data in compilations any lawto required orotherwise

medium by kept and thatconstitutea kept record the lack performanceor performance that are of ofofficialfunctions or should be carried out a official by or a public employee, govern- mental or other agency, any or agency wholly partially supported by funds. All records funds or maintainedin public expending public or public bypublic withinthe employees scope employment offices shallbe to be records. presumed added.) (Emphasis

As statute, is evident of the all by records plain language maintained in offices or within the by public employees of their to be scope records. In shall be employment presumed case, the instant Quillin maintained and a kept county-owned office, in his and he used that computer county computer emails that were both exchange business-related and personal.2 2 The only important locus of a record is to determine whether the record under falls Perroni, 358 presumption 25-19-103(5)(A) in Ark. Code Ann. FOIA. SeeFox v. Ark. 188 S.W.3d881 found the trial court: facts were and by following stipulated GEMS; with Doe 2) its 1) Quillin dealings represented with was 3) Quillin GEMS its dealings County; represented and theft the time he was in business with charged engaged during Doe; relations with Doe had sold software to 4) personal issue 5) and emails at were all received or sent County; email that was maintained in connection with Quillin’s business address his and official for Pulaski These facts business employment County. a reflect was a clearly Quillin county employee using county Further, FOIA, under liberal a these computer. interpretation facts demonstrate that the records at issue with the fall definition of records.” Because the professional relationship between Doe have affected influenced may Quillin’s funds, his the communica- performance expenditures county tions between them constitute record of the lack of of official functions carried out official or employee. statute, Under Quillin’s emails were plain language records, because information is not from the

presumedpublic exempt FOIA unless under Act or some the other statute. specificallyexempted 378, SeeFurman v. 312 Ark. 849 S.W.2d 520 Besides Holloway, (1993). fact, the to rebut trial court’s the and Doe failing findings County offer no other statute or law which would allow to be Quillin’s emails from disclosure. failed exempt evidence to They simply present any meet their burden of the clear that overcoming statutory presumption the records at issue are records. Even if there was some as the of an ambiguity scope alleged the trial court the exemption, favored Democrat-Gazette correctly disclosure, with Rice, as it was to do the FOIA. See required Young 593, sum, 308 Ark. 826 S.W.2d 252 I (1992). In would hold trial court not was erroneous the clearly disclosure the ordering emails under the facts and law of this case. records, the

Because records at issue are and plainly public neither the nor has Doe rebutted County the statutory presump- result, tion the matter for an in camera compelling remanding examination is unwarranted and a waste of time.3 The complete the majority’s in- position unnecessarily and prolongs process 3 Pulaski and Doe, for whatever not to offer reason, chose rebuttal evidence. Had such trial hearings evidence in the no court, further would be they presented in this case. and in so needlessly of a FOIA doing creases request, expenses records. a citizen’s to obtain right

infringes upon an in camera Act does not Freedom of Information simply require circumstances, and the lower court in these instructing inspection of Arkansas’s citizens to such a review thwarts the rights perform that, stated, should be access records public. simply this dissent. JJ., join Imber Danielson, Justice, dissenting. Although Annabelle Clinton Imber, issue, on the I with holding standing agree majority’s in the ends there. This case concurrence majority’s my opinion a of the Arkansas Freedom of matter of presents interpretation Information Act Ark. Code Ann. 25-19-101 (FOIA), through §§ 25-19-109 2002 & to our traditional 2005). Supp. Contrary (Repl. construction, rules of declines to statutory majority apply plain sources and caselaw from FOIA secondary reading adopts the issue whether the e-mails are a other to resolve jurisdictions and a record.”1 our rules of construction statutory “public Employing FOIA, liberal I conclude that e-mails at issue interpretation records,” are to be and Pulaski has not here presumed Therefore, rebutted that remand to the circuit court presumption. reasons, an in is not For the above stated I camera review necessary. dissent. respectfully de Fox v.

We review issues of construction novo. statutory Perroni, 251, 256, 188 S.W.3d We decision; however, the trial in the absence of not bound court’s erred, the trial court its will be showing interpretation as correct on Id. When issues of reviewing accepted appeal. in mind rule in we that the first statutory interpretation, keep and effect of a statute is to construe it considering meaning just reads, it words ordinary usually giving accepted in common Id. When of a statute meaning language. language need rules of is there is no to resort to plain unambiguous, construction. Id. A statute is where it is statutory ambiguous only (Ariz. The Arizona decision in v.Pinal Court’s P.3d 418 County, Supreme Griffis 2007), The term records” is defined statute in Arizona; is not inapposite. “public expressly by in the nor has this court ever a “substantial nexus” test its of applied interpretation majority directive in the if e-mails Thus, FOIA. the remand “to determine opinion, should out ‘constitute a record of of the official functions are or be carried ” ignores the definition under a official or of records” by statutory “public public employee,’ jurisdiction’s in of a different statute. the FOIA favor of another interpretation constructions, or where it is of such obscure two or more open or doubtful be minds or that reasonable disagree meaning might clear, however, a it as to its Id. statute is uncertain When meaning. not search for its and this court will given plain meaning, rather, intent; that intent must be from legislative gathered Smith, Fort of the used. Harris v. meaning language City plain Ark. of 234 S.W.3d 875 (2006). issue case that Pulaski At in this is whether e-mails has refused to release to the Arkansas Democrat-Gazette fall within the in the of records” defined FOIA. scope “public Arkansas Code Annotated defines 25-19-103(5)(A), “public § record” as: films, sounds, recorded or

writings, electronic tapes, computer- information,or based data in medium compilations any requiredby law to be or and that otherwise constitutea record the kept kept of or lack of of performance officialfunctionsthat are or be should carriedout aby officialor a public employee, govern- mental or other agency, any or agencywholly partiallysupported funds or funds. public expending All records public maintained public withinthe bypublicemployees scope employment offices shall tobe presumed publicrecords. Ark. Code Ann. 25-19-103(5)(A) added). (emphasis § Restated, are records to be records presumed when public the records are offices, maintained either (1) (2) by within the of their employees Dan scope employment. Davis, a hardware computer Pulaski analyst testified County, that, in accordance with the he restored county’s policy, previ- deleted ously county-owned used computer Ron Quillin his term of as the during employment county’s Davis testified that comptroller. e-mails that he searched for and all retrieved “GEMS,” contained text string meaning Thus, software vendor and Doe’s county’s employer. apply- ing plain all the retrieved language 25-19-103(5)(A), e-mails were and maintained in the offices of kept Therefore, is that County. all of the retrieved presumption records, e-mails are and unless Pulaski can meet its burden of it must disclose all overcoming of the presumption, retrieved e-mails. that the e-mails at issue are County argues outside records” because the contents the e-mails scope and, therefore, do not constitute record personal, that were functions of official lack of as a county employee. carried out have been or should statute, a narrow true under interpretation

This would be to FOIA. “We liberally law with that is not our respect but laudable its broad and purpose the FOIA accomplish interpret and manner.” in an public business be open that performed 251, 256, Perroni, 188 S.W.3d Fox v. the Act in favor of “Furthermore, construes this court broadly while Quillin case shows that The record in this disclosure.” Id. of a on sides of opposite Doe were parties and representatives Jane and contract between GEMS arms-length purportedly liberal Under a were also interpretation paramours. County, they records,” written communi- definition of of the FOIA “public and the of representative between a cation government employee of fall within the vendor would scope “public a government records.” Doe, nonetheless, assert that they and Pulaski County Jane and Doe were the fact that Quillin engaged have stipulated affair, disclosure of the making

in an extramarital thereby nature” unnecessary and that are “of a private highly personal business laudable broad and purpose FOIA’s satisfy As manner. persuasive in an open performed cites State Florida City Pulaski County on authority point, of Clearwater, Denver Co. 2d 149 (Fla. 2003) Publishing 863 So. of 121 P.3d 190 Commissioner County Arapahoe, v. Board County cases, however, inter- involved the these Both of (Colo. 2005). term definitions of the with different of state statutes pretation records.” above, Flere, at were the e-mails issue exchanged as noted a vendor with and a between county employee representative circumstance is contract. This had an which county ongoing relationship crucial because impropriety rise to the Arkansas Democrat- the matter that bound with gave up is the Quillin’s in the first which Gazette’s FOIA place, request funds that has and misuse of county misappropriation alleged resulted it context is the in a criminal Accordingly, investigation. the disclosure the e-mails were exchanged compels which Where, here, an misuse of the e-mails. alleged of the content of affair, and nature of an extramarital timing funds intersects with into the media’s are material to investigation the e-mail exchanges in an business conducted county open whether a county employee manner. the a list of withheld has offered to provide sender, the date and time of with and recipient, along would address the disclosure of but it transmission. This timing, instance, the the nature of the e-mails. For would not address e-mails released DHFIS Arkansas Democrat-Gazette presented by Quillin in which and Doe to out-of-town conspired arrange Jane as a when the was travel that could off business they trip, pass trip — a facts that not have liaison would been actually private the discoverable from disclosure suggested County. The concludes that an in camera review the majority e-mails’ content was the circuit court’s necessary support While I that some the circuit court’s findings. agree findings erroneous, were an in camera review is not this in case. We review of fact under a errone particular findings clearly Stewart, ous standard. 255 S.W.3d 435 Ligon when, A of fact is on erroneous the entire finding clearly evidence, the court is left with definite firm reviewing and that a conviction mistake has been committed. Id.

The final reflects the circuit judgment court’s finding (des- No. that because the 9) ignated with personal relationship Jane Doe have affected as may Quillin’s em- county have influenced ployee may Quillin’s expenditures county funds, all aspects between relationship Doe are intertwined and enmeshed the in business relation- Jane between Pulaski ship Doe’s This employer. Jane is the finding record. The evidence supported by the presented circuit court demonstrates that Quillin communi- concurrently cated with Doe via e-mail both the in a county’s employee contractual with Doe’s and as relationship Doe’s employer par- amour. The and nature of the e-mails between both timing parties are an paramount investigation misuse of alleged funds.

In a No. separate 8), the circuit finding (designated court stated “It is to discern whether some emails impossible at issue were business emails while purely other emails were purely per- Moreover, sonal in nature. it is to discern where the impossible business and the correspondence stopped personal correspondence started with to the I emails.” with respect the agree majority’s conclusion this is erroneous because the finding clearly finding could be if the circuit only court had supported viewed contents of e-mails and admitted the e-mails into the It record. is that the circuit court declined to conduct undisputed an however, error on this review.2 The circuit court’s point,

camera is under an in camera review not necessary because harmless case. and circumstances facts an circuit must conduct court suggests majority determine whether the e-mails in order to camera review records.” I Under statutory pre- constitute disagree. review records. An in camera the e-mails sumption, would to rebut as evidence offered county useful only above, context of As very explained presumption. e-mails, business associates Doe’s relationship Jane the the content of in a makes romantic relationship, engaged — the or lack of relevant to the issue of a official. government Moreover, that an in camera of its conclusion support the the cites cases where trial court review is majority necessary, the the refusal to disclose had ruled in favor of government’s Stodola, 423, v. 316 Ark. 872 information. requested See Johninson Dev. River StatesPub. v. Ark. Indus. Gannett Co. (1994); S.W.2d 374 cases, Comm’n, 684, In those we 303 Ark. 799 S.W.2d (1990). that, FOIA, to the of the trial court should stressed further purpose an in review as to ensure that the camera so government perform of that the records has fulfilled its affirmative duty proving agency Here, hand, other the from disclosure.3 on the are truly exempt in favor the Arkansas Democrat- circuit court has ruled Gazette, plaintiff, the FOIA’s not the thereby government, promoting I of liberal disclosure. also conclude that County’s policy will Doe’s constitutional of the e-mails not violate disclosure Rock, 219, v. Little 298 Ark. to In City right privacy. McCambridge murdered wife son his (1989), 766 S.W.2d 909 McCambridge’s suicide, and the Little Rock Police and child before committing scene, from the crime recovered several documents Department from son that a letter to her contained including McCambridge to e-mails. Its to this evidence failed failure proffer proffer prejudice review whether from the circuit court’s failure to conduct our resulted precludes Sporting v. Goods-Services,Inc., 224, an in camera See Oshman’s inspection. Duque 937 S.W.2d179 Publishing Industrial As we stated in River States Co. Arkansas Gannett Development right otherwise makes the to know subservient Commission, hold hopelessly supra,"to public’s agency requesting to unassailable involved. person impressions agency’s be lack of decision.” 303 unable, information, would information question 690, 799 Ark. at S.W.2d at 547. Id. sensitive information about McCambridge relationship. the letter to sued to prevent police department releasing on would under the FOIA the basis the disclosure press violate her constitutional Id. We right privacy. agreed disclosure of certain information under FOIA could infringe an individual’s interest in disclosure upon matters under her constitutional avoiding personal Id. We right privacy. recog- nized, however, that a matter can if still disclosed the personal interest disclosure under the FOIA governmental outweighs individual’s We interest. Id. held that matter is privacy personal information: confidential, (1) thatthe individualwantsto andhas keptprivate that, action, (2) for the challenged canbe except government kept confidential,

private (3)thatto reasonable wouldbe person harmfulor if disclosed. embarrassing Id. at 766 S.W.2d at 914. we held that the letter was a Although matter, because the letter contained information bearing the son’s behind the upon reasoning suicide-murders and the public has a crime, interest in announced we strong solutions to concluded interest pubhc’s individual in- outweighed McCambridge’s terest. Id. Here, information in the e-mails between Doe and because,

Quillin do not constitute matter unlike in even if does not McCambridge, disclose the county e-mails at time, this the e-mails will not remain and confidential. The private e-mails have been used in the criminal investigation will also be used in Moreover, criminal subsequent prosecution. has a interest in the strong resolution of crimes and the or lack of officials. government Therefore, the interest in public’s disclosure Doe’s outweighs Jane interest. privacy

On these and a liberal findings construction of “public disclosure, records” favor of I conclude that disclosure at issue and their content is the FOIA’s required satisfy business be an purpose performed open reasons, manner. For these I would affirm the circuit court.

Glaze join dissent. Danielson, JJ.,

Case Details

Case Name: Pulaski County v. Arkansas Democrat-Gazette, Inc.

Court Name: Supreme Court of Arkansas

Date Published: Jul 20, 2007

Citation: 260 S.W.3d 718

Docket Number: 07-669

Court Abbreviation: Ark.