concurring in part, dissenting in part. Despite any ice, that the “ship has already sailed,” I write to make clear that I disagree with the majority’s handling of this case from the very beginning. While I concur with the majority’s decision that Pulaski County and the intervenor have not demonstrated that the circuit court’s findings were clearly erroneous, I continue to adhere to my original opinion that Pulaski County and the intervenor failed to rebut the statutory presumption that the contested emails constituted public records in the initial hearing before the circuit court. In addition, both Pulaski County and the intervenor, by failing to proffer the contested emails to the circuit court during the initial hearing, failed to make a record sufficient to preserve their arguments for appeal, from the beginning. For these reasons, I concur in part and dissent in part.
Initially, I must point out that, from the beginning, the majority completely lost sight of and ignored the Arkansas Freedom of Information Act (FOIA) statutory scheme and our case law. The remand of this matter to the circuit court for an in camera review was erroneous and completely disregarded the rebuttable presumption established by the General Assembly in Ark. Code Ann. § 25-19-103(5)(A) (Supp. 2005).1 Section 25-19-103(5)(A) defines “public records” and establishes the presumption:
(5) (A) “Public records” means writings, 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) (Supp. 2005) (emphasis added). The statute makes very clear that, while presumed a public record, an email will not constitute a public record if it does not constitute a record of an employee’s performance or lack of performance of official functions.
Here, the emails at issue were presumed to be public records; thus, it was presumed that the emails were writings required to be kept or otherwise kept and were a record of the performance or lack of performance of official functions by a government employee. In order to prohibit the release of the emails, Pulaski County and the intervenor had to rebut that presumption, but they did not.2 Thus, the emails were presumed to be public records, which were subject to disclosure, and the circuit court correctly so held in the initial hearing. In short, the circuit court was correct the first time.
However, instead of affirming the circuit court’s ruling in this matter, the majority remanded, giving Pulaski County and the intervenor a second bite at the apple. That is the point at which this case went awry, and the reason I continue to dissent in part.
Nonetheless, with respect to the merits, and assuming that Pulaski County and the intervenor had attempted to rebut the presumption during the initial hearing, I would affirm the circuit court’s decision, which was rendered upon remand.3 I must emphasize that I am in no way stating that every email sent from or delivered to a government computer or government email account constitutes a public record under the FOIA, codified at Ark. Code Ann. §§ 25-19-101 - 25-19-109 (Repl. 2002 & Supp. 2005). So the circuit court found in its initial order, wherein it said:
The Court wants to make clear, however, that the facts in this case are determinative as to the finding that these emails are public records. In no way is this Court finding that all emails on Pulaski County computers are, in fact, public records. In short, those decisions must be made on a case by case basis.
That being said, it is clear to me, under the facts of this case, and as the circuit court found, that the emails at issue constituted public records and were subject to disclosure under the FOIA. Thus, in an effort to provide guidance for future FOIA cases and in an effort to prevent similar time delays in such cases, I believe some analysis is necessary to support my position that the circuit court’s decision was not clearly erroneous.
As already stated, a public record is a (1) record, required to be kept or otherwise kept, (2) that constitutes 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. See Ark. Code Ann. § 25-19-103(5)(A). The emails at issue were kept, such that the first element of the definition was met. At issue in the instant case, and in most FOIA cases, is whether or not the emails at issue were a record of performance or lack of performance of official functions by Quillin. Based on the facts of this case, I would hold that the emails were.
It is further my opinion that, once a public agency has attempted to rebut the presumption that a record was, or records were, a public record, which necessarily requires the introduction of the challenged records into the record, it is incumbent on the circuit court to examine each contested record to determine whether or not it constitutes a public record, under the definition in the statute.4 That is because each record must constitute a record of performance or lack of performance of official functions in order to be disclosed under the FOIA.
In this case, the circuit court, on remand, reviewed the emails and found that the emails reflected on the performance of official functions by Quillin. Further, it found that all of the emails should be released because they constituted a public record of the performance of official functions and because it was impossible to discern which particular email or portion of email was strictly personal and bore no relationship to business. The circuit court, however, did find that certain emails containing explicit photographs were not subject to release and that seven other contested emails were not public records subject to disclosure.5
I agree with the circuit court, but for different reasons. Much has been made of whether many of the emails were personal, private, or sexually explicit. That is of absolutely no moment as such designations are simply irrelevant in the context of a FOIA case. A review of the statutory scheme reveals no consideration as to whether the information, the disclosure of which is contested by the public agency, is personal, private, or sexually explicit. The sole consideration in determining whether the record is a public record and one subject to disclosure is whether the record itself constitutes a record of the performance or lack of performance of a public official. Any other consideration is erroneous.
A review of the circuit court’s findings with respect to the emails in the instant case, the disclosures of which were challenged by Pulaski County and the intervenor, reveals that each email was a recording of Quillin’s performance or lack of performance in his official function. Each contested email’s content demonstrated Quillin’s involvement, outside of work, with an individual whose job was, at least in part, dependent upon Pulaski County’s contract with her employer, a contract which was overseen by Quillin.6 For that reason, I agree with the circuit court’s conclusion and would affirm the order of disclosure rendered by the circuit court, as the majority does.7
Our General Assembly has clearly pronounced the necessity of the FOIA to review public business and how it is conducted:
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 learn and to report fully the activities of their public officials.
Ark. Code Ann. § 25-19-102 (Repl. 2002) (emphasis added). As we have said, our role in determining whether something constitutes a “public record” is limited to interpreting the FOIA statute. See, e.g., Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004). To that end, we liberally construe the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. See Arkansas Dep’t of Fin. & Admin. v. Pharmacy Assocs., Inc., 333 Ark. 451, 970 S.W.2d 217 (1998).
In the present day and age, the internet and electronic technology are prevalent and their use is ever increasing in government business, which results in issues such as the one in the instant case. For that reason, the General Assembly has clearly contemplated that public records may exist in electronic form. Whether the records at issue are in electronic or paper form, our role remains the same. We are limited to reviewing and interpreting the FOIA statutes, as it is not our job to create public policy. See, e.g., Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005).
In sum, the majority’s erroneous actions in this case via its initial per curiam order, which gave Pulaski County and the intervenor yet another chance to rebut the statutory presumption and which they failed to do yet again, has resulted in a delay in this case of more than three months and counting since the original request for disclosure. This clearly flies in the face of the purpose of Arkansas’s FOIA. Nonetheless, it is my opinion, were I to reach the merits, that based on the exceedingly clear language of the statute and the uncontroverted facts of this case, the contested emails at issue, excepting the seven emails excluded by the circuit court from disclosure, were indeed records of Quillin’s performance or lack of performance of official functions and, therefore, constituted public records subject to disclosure under the FOIA. As a result, the circuit court’s findings were not clearly erroneous. However, because I continue to believe that Pulaski County and the intervenor failed to rebut the statutory presumption during the initial hearing in this matter and failed to bring up a proper record for review after that hearing, I must respectfully dissent in part and concur in part.
Imber, J., joins.In doing so, the majority completely ignored our long-standing tenet of law that it is the appellant’s duty to bring up a record sufficient to demonstrate error. See, e.g., MIC v. Barrett, 313 Ark. 527, 855 S.W.2d 326 (1993).
While one might argue that Pulaski County attempted to rebut the presumption when it requested the circuit court to review the emails in the initial hearing, Pulaski County failed to make its record when it faded to proffer the emails it contested and that the circuit court declined, at that time, to review. Thus, the emails were never made a part of the record during the initial hearing. In order to make a record, one must make a proffer. The failure to proffer evidence so that this court can determine prejudice precludes review of the evidence on appeal. See Duque v. Oshman’s Sporting Goods Servs., Inc., 327 Ark. 224, 937 S.W.2d 179 (1997). Moreover, as already stated, it is the appellant’s duty, and not that of the circuit court, to demonstrate error in the proceedings below and to bring up a record sufficient to demonstrate error. See, e.g., MIC v. Barrett, 313 Ark. 527, 855 S.W.2d 326 (1993).
The same holds true for the proceedings on remand; Pulaski County and the intervenor did not attempt to rebut the presumption, even after being given a second chance to do so by the majority of this court.
This of course presumes that the agency has proffered the records it does not consider to be public to the circuit court for such a determination, which was clearly not the case during the initial hearing in the case at hand.
The circuit court’s decision as to those records has not been challenged by either party, as recognized by the majority.
As I have said, my opinion is premised on the facts of this case. Were a public official or employee to have a relationship of sorts with someone not so closely intertwined to the expenditure of public funds, sending emails similar to the ones at issue here, I could not say that those emails would constitute a public record under section 25-19-103(5)(A), rendering them subject to disclosure. Here, it is the fact that each email’s content demonstrated a relationship between Quillin and someone employed by a county vendor, whose account and contract were overseen by Quillin, that rendered each email between Quillin and the intervenor records of Quillin’s performance or lack of performance of official functions.
While recognizing that the issue is not before us, I would have also ordered the disclosure of what have been termed the “sexually explicit” emails, under the facts of this case. As already stated, there is no mention or exception for sexually-explicit records contained within the FOIA. Thus, they too constituted a record of Quillin’s performance or lack of performance, for the same reasons as the other emails.