Pulaski County v. Arkansas Democrat-Gazette, Inc.

260 S.W.3d 718, 370 Ark. 435, 35 Media L. Rep. (BNA) 2089, 2007 Ark. LEXIS 436

Opinions

Per Curiam.

This appeal arises from an order of the Pulaski County Circuit Court, providing certain e-mails be disclosed pursuant to the Freedom of Information Act (FOIA) set forth in Ark. Code Ann. § 25-19-105 (Repl. 2002). On appeal, Appellant Pulaski County argues that the circuit court erred in holding that the e-mails were “public records” as defined by the FOIA. We remand this case to the circuit court with the instruction to perform an in camera review of the e-mails.

On June 4, 2007, Ronald Quillin, former Pulaski County Comptroller and Director of Administrative Services, was arrested for allegedly embezzling approximately $42,000.00 from Pulaski County. Quillin had terminated employment with Pulaski County on April 30, 2007, and was employed by the Arkansas Department of Flealth and Human Services at the time of his arrest. On June 5, 2007, Appellee Arkansas Democrat-Gazette, through its reporter, Van Jensen, made a written FOIA request to Pulaski County Attorney Karla Burnett asking her to disclose “all e-mail and other recorded communication between former Pulaski County Comptroller and Director of Administrative Services Ron Quillin and employees of Government e-Management Solutions, a software contractor for Pulaski County, from Jan. 2005 to the termination of Mr. Quillin’s employment with the county.”

Quillin deleted all of the e-mail files contained on his computer prior to his termination. The e-mail messages were not saved in a central location or backed up on any computer medium. Before the FOIA request was made, Pulaski County had the deleted e-mail files restored. On June 12, 2007, Pulaski County released some but not all of the e-mail correspondence requested by the Appellee under the FOIA, contending that the e-mails not released do not constitute “public records” within the meaning of Ark. Code Ann. § 25-19-103.

On June 14, 2007, Appellee filed a complaint against Pulaski County and Pulaski County Attorney Karla Burnett pursuant to the FOIA. That same day, a motion to dismiss was filed on behalf of Pulaski County Attorney Karla Burnett. On June 19, 2007, a hearing was held before the Pulaski County Circuit Court. At the hearing, all parties agreed that Pulaski County Attorney Karla Burnett should be dismissed as a defendant in the matter and that Jane Doe, an employee of Government e-Management Solutions, should be allowed to intervene in the matter. The court heard testimony from Jensen, David Bailey, the managing editor of the Arkansas Democrat-Gazette, and Dan Davis, a hardware analyst with Pulaski County Information Systems who maintains the network file servers for the county computer system.

On June 25, 2007, the circuit court entered its final judgment in favor of Appellee. The circuit court concluded that the withheld e-mails were public records and ordered them released to Appellee within twenty-four hours of the entry of its judgment. Pulaski County filed a notice of appeal, a designation of the record, and a motion for stay pending appeal. The circuit court denied the motion for stay on June 26, 2007. Pulaski County then filed motions to expedite and for stay pending appeal with this court. We granted the motion to expedite, and ordered the stay pending appeal. We also ordered the parties to file simultaneous briefs addressing the following issues on appeal:

1. Do Pulaski County and the intervenor, Jane Doe, have standing to raise an FOIA issue?

2. Are personal e-mails in a county computer exempt from FOIA? If so, under what circumstances?

3. Did the intervenor waive all privacy rights by sending e-mails to a county computer?

4. Is it necessary for this court to do an in camera review of the e-mails to distinguish personal from business e-mails?

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

We now turn to the issue of whether personal e-mails in a county computer are exempt from the FOIA. Though we have asked the parties to brief the issue of whether personal e-mails in a county computer are exempt from FOIA, we conclude that the issue in this case is not exemption. Rather, the issue here is whether the e-mails are “public records” pursuant to the FOIA. Pulaski County asks us to reverse and dismiss this case, arguing that the trial court erred in finding that the e-mails were “public records” as defined by the FOIA. Alternatively, it argues that this case should be remanded with the instruction to conduct an in camera review to determine if these documents do, in fact, “constitute a record of the performance or lack of 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. Appellee responds, arguing that the circuit court correctly determined that the e-mails at issue are public records. Appellee asks us to affirm the circuit court’s decision and lift the stay of the circuit court’s judgment and injunction.

In this case, we are asked to interpret the FOIA statutory provision regarding the disclosure of records. We review issues of statutory construction de novo. Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). On review of an issue of statutory interpretation, we are not bound by the decision of the trial court; however, in an absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004) (citing Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998)). We liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. Id. Furthermore, this court broadly construes the Act in favor of disclosure. Id.

The FOIA, codified at Arkansas Code Annotated § 25-19-101 et seq., opens “all public records” for public inspection and copying. Ark. Code Ann. § 25-19-105(a). The FOIA defines public records as follows:

(5)(A) “Public records” means writing, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.

Ark. Code Ann. §§ 25-19-103(5)(A).

While recognizing our commitment to the general proposition that the FOIA should be broadly construed in favor of disclosure and exceptions construed narrowly in order to counterbalance the self-protective interests of the governmental bureauracracy, we are also aware of the need for a balancing of interests to give effect to what we perceive to be the intent of the General Assembly. In doing so, a common sense approach must be taken. Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). The legislative intent behind the FOIA is stated at Ark. Code Ann. § 25-19-102:

It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to leam and to report folly the activities of their public officials.

In The Arkansas Freedom of Information Act, the authors state:

While the FOIA expressly covers records “required by law to be kept,” the legislature apparently did not intend that every record maintained by an agency be subject to pubhc inspection, because the “performance” language in Section 25-19-103(5)(A) limits the term “otherwise kept.” While some state FOI statutes seem to include every record held by an agency regardless of its origin or content, the Arkansas act is similar to statutes that cover only those records made or received “in connection with” or “relating to” the agency’s duties.

The presence of the term “performance” in Section 25-19-103(5) (A) may invite a narrower interpretation of “pubhc records.” For example, while personal notes made by public officials presumably would be pubhc record under a definition that did not include the “performance” language, the Attorney General has indicated that such notes fall outside Arkansas FOIA. This result is sound, particularly in light of the use of the term “scope of employment” in Section 25-19-103(5)(A). There may be instances, however, in which the personal activities of a pubhc official or employee are inextricably hnked to his or her governmental role.

JohnJ. Watkins & RichardJ. Peltz, The Arkansas Freedom of Information Act, 91, 93 (4th ed. 2004); see also Op. Ark. Att’y Gen. No. 095 (2005) (stating that the presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not “constitute a record of the performance or lack of performance of official functions”). Watkins and Peltz specifically address the situation of government employees using their e-mail for both personal and work-related purposes as follows:

On the face of the Arkansas FOIA, this problem should not be difficult to resolve. Public records are limited by definition to “record[s] of the performance or lack of performance of official functions.”

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

See Watkins & Peltz, supra, at 437-39.

Pulaski County argues that when determining whether a document is a public record, we must look at the content of the document, rather than where it is located. Appellee agrees that we must look at the content, but also argues that we must look at the context, including “the circumstances surrounding the transmission of the e-mails, the location of the e-mails, and subsequent facts that have come to light regarding Mr. Quillin in his position as a public official.”

Other states have used a content-driven analysis in determining whether a document is a public record. The Florida Supreme Court has held that personal e-mails do not fall within the definition of “public records” subject to disclosure by virtue of their placement on a government-owned computer system. State v. Clearwater, 863 So. 2d 149 (Fla. 2003). In Clearwater, city employees reviewed their e-mails and sorted them into two categories, personal and public. A reporter from Times Publishing Company requested all e-mails sent from or received by two city employees over the City’s computer network. Even though the City copied the public e-mails and provided them, Times Publishing asserted that it was entitled to all the e-mails generated by and stored on the City’s computers. The Florida Supreme Court held that the determining factor of whether a document is a public record subject to disclosure is the nature of the record, not its physical location. The court concluded that “ ‘personal’ e-mails are not ‘made or received pursuant to law or ordinance or in connection with the transaction of official business’ ” and, therefore, do not fall within the definition of public records in Florida Statutes Annotated section 119.011(1) by virtue of their placement on a government-owned computer system. Similarly, the Colorado Supreme Court has 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. Denver Publ’g Co. v. Bd. of County Comm’rs, 121 P.3d 190 (Colo. 2005).

The Arizona Supreme Court has also used a content-driven analysis regarding e-mail messages:

-The broad definition of public records, however, is not unlimited. The public records law requires all public officials to make and maintain records “reasonably necessary to provide knowledge of all activities they undertake in the furtherance of their duties.” Carlson, 141 Ariz. at 490, 687 P.2d at 1245 (emphasis added). That definition does not encompass documents of a purely private or personal nature. Instead, only those documents having a “substantial nexus” with a government agency’s activities qualify as public records. Salt River, 168 Ariz. at 541, 815 P.2d at 910. “[T]he nature and purpose of the document” determine its status as a public record. Id. at 538, 815 P.2d at 907 (quoting Linder v. Eckard, 261 Iowa 216, 152 N.W.2d 833, 835 (Iowa 1967)). Determining a document’s status, therefore, requires a content-driven inquiry. Because the nature and purpose of the document determine its status, mere possession of a document by a public officer or agency does not by itself make that document a public record, id., nor does expenditure of public funds in creating the document, id. at 540-41, 815 P.2d at 909-10. To hold otherwise would create an absurd result: Every note made on government-owned paper, located in a government office, written with a government-owned pen, or composed on a government-owned computer would presumably be a public record. Under that analysis, a grocery list written by a government employee while at work, a communication to schedule a family dinner, or a child’s report card stored in a desk drawer in a government employee’s office would be subject to disclosure. The pubhc records law was never intended to encompass such documents; the purpose of the law is to open government activity to pubhc scrutiny, not to disclose information about private citizens. See id.; accord State v. City of Clearwater, 863 So. 2d 149, 154 (Fla. 2003) (noting the absurdity of classifying household bills or notes about personal conversations as pubhc records simply because they are located in a government office); cf. Bureau of Nat’l Affairs, Inc. v. United States Dep’t of Justice, 742 F.2d 1484, 1486 (D.C. Cir.1984) (holding that personal appointment materials, such as calendars and daily agendas, are not agency records under the Freedom of Information Act, 5 U.S.C. § 552 (2006)).

Griffis v. Pinal County, 156 P.3d at 421-22 (Ariz. 2007) (en banc).

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

Appellee responds, arguing that because there is no claim that the e-mails fall under a FOIA exemption, an in camera review is not necessary. It asserts that because of the FOIA presumption that the e-mails are public records, the circuit court was correct in not conducting an in camera review. In its reply brief, Appellee contends that such a review would further delay public access to the e-mails.

We have held that the circuit court must review the relevant information in question to determine whether an FOIA exemption to disclosure applies. See, e.g., Johninson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994); Gannett River States Publ’g Co. v. Arkansas Indus. Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990). In Johninson, we remanded the case so that the circuit court could perform an in camera review and then decide whether the information should be released. While the present case does not involve a claim that the e-mails fall under an FOIA exemption, we hold that an in camera review is necessary.

Comparing the nature and purpose of a document with an official’s or agency’s activities to determine whether the required nexus exists necessarily requires a fact-specific inquiry. See Griffis, supra (citing Church of Scientology v. City of Phoenix Police Dep’t, 594 P.2d 1034, 1035 (Ariz. Ct. App. 1979)). To make that inquiry, while maintaining the privacy of personal, non-public documents, a court should perform an in camera review. Id. A neutral court should be the final arbiter of what qualifies as a public record. See Griffis, supra (remanding the case to permit the superior court to review the content of the disputed e-mails in camera to determine whether they were subject to the public records law). In Denver Publ’g, supra, involving sexually explicit and romantic e-mails that were exchanged between the county recorder and the recorder’s assistant, the Colorado Supreme Court remanded the case after concluding that

the court of appeals failed to take into account the specific nature of the e-mails and their individual content to determine if they address the performance of public functions. An analysis of the messages based solely on the context in which they were created, without an examination of the content of the messages, is insufficient to determine whether the messages are ‘public records.’

121 P.3d at 202. Watkins and Peltz also address the issue of in camera review, stating “[i]f a determined records requester were able to articulate doubt as to the reliability of a record segregation process, the requester could obtain an in camera review by a court, which would not infringe on the employee’s right to privacy, but which would require bringing suit.” See Watkins & Peltz, supra, at 437-38.

In the present case, the circuit court, in its final judgment, stated:

Based on the evidence presented at the hearing and all matters appearing of record, the Court makes the following findings of fact:

Finding 8. It is impossible to discern whether some emails at issue were purely business emails while other emails were purely personal in nature. Moreover, it is impossible to discern where the business correspondence stopped and the personal correspondence started with respect to the emails. Personal meetings may have been disguised as business meetings. The Court, however, makes no finding of fact or conclusion of law concerning the legitimacy of any particular business matter raised in the emails at issue. Any such question is beyond the scope of this case.

Finding 9. The personal relationship with Jane Doe may have affected Mr. Quillin’s performance as a public employee of Pulaski County. The personal relationship may have influenced Mr. Quillin in expenditures of funds of Pulaski County. For these reasons, all aspects of the personal relationship between Mr. Quillin and Jane Doe are intertwined and enmeshed in the business relationship between Pulaski County and Government e-Management Solutions, Inc.

Based on the foregoing findings of fact, the Court makes the following conclusions of law:

Conclusion 4. 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.

Conclusion 5. However, the Court makes clear that it does not find or hold that any and all emails on Pulaski County computers are, in fact, public records. To the contrary, even with the statutory presumption, it is still necessary to examine the facts concerning emails on a case-by-case basis.

Conclusion 6. 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.

Both Pulaski County and the Intervenor asked the circuit court to review the subject e-mails in camera. The circuit court decided not to review the e-mails, and therefore the e-mails are not included in the record. Without reviewing the e-mails, there is not enough evidence to support the factual findings that “[i]t is impossible to discern whether some emails at issue were purely business emails while other emails were purely personal in nature,” and that “all aspects of the personal relationship between Mr. Quillin and Jane Doe are intertwined and enmeshed in the business relationship between Pulaski County and Government e-Management Solutions, Inc.” Nor does the limited amount of evidence in the record support the conclusion that “the e-mails 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.”

We agree with the circuit court’s conclusion that not all e-mails on Pulaski County computers are public records, and that even with the statutory presumption, it is still necessary to examine the facts concerning e-mails on a case-by-case basis. However, we hold that in 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.

Remanded.

Glaze, Imber, and Danielson, JJ., dissent.