I have written here previously about the Arkansas Freedom of Information Act and consider myself a strong supporter of the FOIA. When I first read that the Arkansas Supreme Court rules that some emails Ron Quillan sent would be allowed to remain secret - I was mildly outraged. I think my outrage comes from the fact that as a former Pulaski County employee myself -- I felt as though government employees have no expectation of privacy if they chose to keep emails on their computers at work. Here is where the lawyer in me comes out. However, there is a difference between expectation of privacy and the actual words of the FOIA. After reading the Supreme Court's decision - I was persuaded their view was logical and the correct interpretation of the FOIA. As I tell people all the time -- you learn all sorts of things when you actually read what a law says, not what you think it should say.
The actual opinion can be found in full at:
As the Court points out -- the issue is whether the emails are "public records" as defined by the FOIA.
In 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.
As you can see -- this is not just anything produced by an employee. The records have to be in the scope of their employment. Of course, flirty emails would typically not be in an employees scope of employment. This case is difference because Quillan was having an affair with a county contractor -- and therefore he commonly mixed work discussion and personal discussions. Once the case was remanded, Judge McGowan again ruled that most of the emails were subject to FOIA because of this mixing of social and work topics. Quillan was not only a thief but he was a fool. He could have easily have used a separate private email system such as hotmail to conduct his affair. He knew his emails were capable of being read by people at the County or even subject to FOIA.
So I agree with the Supreme Court that not everything is subject to FOIA. Even government employees have some privacy interests. However, I don't think they should. The FOIA should be modified to make clear that unless the records fall under a specific exception --- emails sent through the state inmate system are all subject to FOIA with some narrow exceptions. Having an affair should not be one of these areas protected. As the Corut notes, it is stretching the meaning of the statute to argue that email communication concerning an affair having anything to do with the scope of employment. This is a leglislative issue --- not one for the Surpeme Court. The legislature should make is crystal clear that public computers are to be used for public purposes -- not private affairs.
There is a separate issue here as well. We hope and expect our public officials to act in ways that aren't arbitrary. In this case -- it seems unfair that the head of county government gets to decide what is public and private email correspondence. What if the county had done what DHS did - and simply declare that all of the emails were public -- Quillan would have had no recourse it would seem, as it should be. It would be easier to create a bright-line rule --- there is no such thing as personal, private emails stored on government computers. I hope some FOIA supporter in the legislature remembers this case in two years and fixes this apparent loophole.
As I already mentioned -- DHS didn't think twice and simply handed over the emails. Our county leaders decided to fight to protect a thief's privacy. This has to be one of the worst PR decisions as well as waste of taxpayer funds I've seen in a long time.