Tuesday, August 28, 2007
Arkansas Supreme Court: Trial Court Must Examine Emails To Determine Which Ones Are Subject To Public Records Law
The Arkansas Supreme Court has remanded a case to the trial court to determine which of a former public official's emails requested by a newspaper under the state's FOIA statute are public records and which are private.
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....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....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.... We liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner....Furthermore, this court broadly construes the Act in favor of disclosure....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....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....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....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....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."