dissenting. I dissent from the majority’s decision to remand this case. If the trial court’s decision is reversed or remanded, it will seriously weaken the FOIA and its legislative intent.
When addressing this public-records issue, the majority spends a considerable amount of time citing and discussing cases from other states involving those states’ “open records” laws; however, those cases are easily distinguishable from Arkansas’s FOIA statutes and case law.1 Of more importance, our General Assembly and this court have dealt with this public-records issue and its meaning since 1967, when the Arkansas FOIA was enacted and codified at Ark. Code Ann. §§ 25-19-101 to -109 (Repl. 2002 & Supp. 2005). Our court, in the case of City of Fayetteville v. Edmark, 304 Ark. 79, 801 S.W.2d 275 (1990), emphasized the legislative intent of the FOIA as set out in Ark. Code Ann. § 25-19-102, which provides as follows:
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.
The Edmark court pointed out the case of Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), the first case in which this court interpreted the FOIA. Laman held that there was no attorney-client privilege concerning FOIA information. The La-man decision has served as the forty-year-old benchmark when our courts are called upon to interpret the FOIA, particularly the Act’s provisions concerning public records. Quoting from Laman, the Edmark court stated as follows:
As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public----We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.
The language of the act is so clear, so positive, that there is hardly any need for interpretation.
Edmark, 204 Ark. at 184-85, 801 S.W.2d at 278 (quoting Laman, 245 Ark. at 404-05, 432 S.W.2d at 755) (emphasis added).
In the present case, this court is again asked to interpret the application of Arkansas’s FOIA provisions regarding “public records.” See Ark. Code Ann. § 25-19-103(5)(A) and Ark. Code Ann. § 25-19-105. Section 25-19-103(5)(A) provides as follows:
“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.
(Emphasis added.)
As is evident by the plain language of the statute, all records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records. In the instant case, Quillin maintained and kept a county-owned computer in his county office, and he used that computer to exchange emails that were both business-related and personal.2
The following facts were stipulated and found by the trial court: 1) Quillin represented the County in its dealings with GEMS; 2) Doe represented GEMS in its dealings with Pulaski County; 3) Quillin was charged with theft during the time he was engaged in business and personal relations with Doe; 4) Doe had sold software to Pulaski County; and 5) the emails at issue were all received by or sent from Quillin’s business email address that was maintained in connection with his employment and official business for Pulaski County. These facts clearly reflect that Quillin was a county employee using a county computer. Further, under a liberal interpretation of the FOIA, these facts demonstrate that the records at issue fall with the definition of “public records.” Because the personal and professional relationship between Quillin and Doe may have affected or influenced Quillin’s performance and his expenditures of county funds, the communications between them constitute a record of the performance or lack of performance of official functions carried out by a public official or employee.
Under the plain language of the statute, Quillin’s emails were presumed public records, because information is not exempt from the FOIA unless specifically exempted under the Act or some other statute. See Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993). Besides failing to rebut the trial court’s findings of fact, the County and Doe offer no other statute or law which would allow Quillin’s emails to be exempt from disclosure. They simply failed to present any evidence to meet their burden of overcoming the clear statutory presumption that the records at issue are public records.
Even if there was some ambiguity as to the scope of an alleged exemption, the trial court correctly favored the Democrat-Gazette with disclosure, as it was required to do by the FOIA. See Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). In sum, I would hold that the trial court was not clearly erroneous in ordering the disclosure of the emails under the facts and law of this case.
Because the records at issue are plainly public records, and neither the County nor Doe has rebutted the statutory presumption compelling that result, remanding the matter for an in camera examination is unwarranted and a complete waste of time.3 The majority’s position unnecessarily prolongs the process and increases the expenses of a FOIA request, and in so doing needlessly infringes upon a citizen’s right to obtain public records. The Freedom of Information Act simply does not require an in camera inspection in these circumstances, and instructing the lower court to perform such a review thwarts the rights of Arkansas’s citizens to access records that, simply stated, should be public.
Imber and Danielson, JJ., join this dissent.For example, both State v. City of Clearwater, 863 So. 2d 149 (Fla. 2003), and Griffis v. Pinal County, 156 P.3d 418 (Ariz. 2007), were concerned only with abstract questions of law regarding whether emails sent or received by public employees constituted public records simply because those emails were placed on a government-owned computer. In addition, the definitions of “public records” are different in Florida and Arizona. Florida defines the term as “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” See Fla. Stat. § 119.011 (2005). Notably, Florida’s FOIA contains nothing similar to Arkansas’s presumption that records maintained in public offices or by public employees are public records. Arizona’s public-records law does not expressly define the term. See, e.g.,Ariz. Rev. Stat.Ann. §§ 39-121 to 39-121.03 (2001 & Supp. 2006).
The locus of a record is only important to determine whether the record falls under the presumption in Ark. Code Ann. § 25-19-103(5)(A) of the FOIA. See Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004).
Pulaski County and Doe, for whatever reason, chose not to offer rebuttal evidence. Had they presented such evidence in the trial court, no further hearings would be necessary in this case.