Pulaski County v. Arkansas Democrat-Gazette, Inc.

Annabelle Clinton Imber, Justice,

dissenting. Although I agree with the majority’s holding on the standing issue, my concurrence in the majority’s opinion ends there. This case presents a matter of interpretation of the Arkansas Freedom of Information Act (FOIA), Ark. Code Ann. §§ 25-19-101 through 25-19-109 (Repl. 2002 & Supp. 2005). Contrary to our traditional rules of statutory construction, the majority declines to apply a plain reading of the FOIA and adopts secondary sources and case law from other jurisdictions to resolve the issue of whether the e-mails are a “public record.”1 Employing our rules of statutory construction and a liberal interpretation of the FOIA, I conclude that the e-mails at issue here are presumed to be “public records,” and Pulaski County has not rebutted that presumption. Therefore, remand to the circuit court for an in camera review is not necessary. For the above stated reasons, I respectfully dissent.

We review issues of statutory construction de novo. Fox v. Perroni, 358 Ark. 251, 256, 188 S.W.3d 881, 885 (2004). We are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006).

At issue in this case is whether the e-mails that Pulaski County has refused to release to the Arkansas Democrat-Gazette fall within the scope of “public records” as defined in the FOIA. Arkansas Code Annotated § 25-19-103(5)(A), defines “public record” as:

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) (emphasis added).

Restated, records are presumed to be public records when the records are maintained either (1) in public offices, or (2) by public employees within the scope of their employment. Dan Davis, a computer hardware analyst for Pulaski County, testified that, in accordance with the county’s policy, he restored previously deleted e-mails from a county-owned computer used by Ron Quillin during his term of employment as the county’s comptroller. Davis testified that he searched for and retrieved all e-mails that contained the text string “GEMS,” meaning the county’s software vendor and Jane Doe’s employer. Thus, applying the plain language of § 25-19-103(5)(A), all of the retrieved e-mails were kept and maintained in the public offices of Pulaski County. Therefore, the presumption is that all of the retrieved e-mails are public records, and unless Pulaski County can meet its burden of overcoming this presumption, it must disclose all of the retrieved e-mails.

Pulaski County argues that the e-mails at issue are outside the scope of “public records” because the contents of the e-mails are personal, and, therefore, do not constitute a record of the performance or lack of performance of official functions that were or should have been carried out by Quillin as a county employee. This would be true under a narrow interpretation of the statute, but that is not our law with respect to FOIA. “We liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner.” Fox v. Perroni, 358 Ark. 251, 256, 188 S.W.3d 881, 885 (2004). “Furthermore, this court broadly construes the Act in favor of disclosure.” Id. The record in this case shows that while Quillin and Jane Doe were representatives of parties on opposite sides of a purportedly arms-length contract between GEMS and Pulaski County, they were also paramours. Under a liberal interpretation of the FOIA definition of “public records,” a written communication between a government employee and the representative of a government vendor would fall within the scope of “public records.”

Pulaski County and Jane Doe, nonetheless, assert that they have stipulated to the fact that Quillin and Jane Doe were engaged in an extramarital affair, thereby making disclosure of the e-mails that are “of a highly personal and private nature” unnecessary to satisfy the FOIA’s broad and laudable purpose that public business be performed in an open and public manner. As persuasive authority on this point, Pulaski County cites State of Florida v. City of Clearwater, 863 So. 2d 149 (Fla. 2003) and Denver Publishing Co. v. Board of County Commissioner of County of Arapahoe, 121 P.3d 190 (Colo. 2005). Both of these cases, however, involved the interpretation of state statutes with different definitions of the term “public records.”

Flere, as noted above, the e-mails at issue were exchanged between a county employee and a representative of a vendor with which the county had an ongoing contract. This circumstance is crucial because the impropriety of the personal relationship is bound up with the matter that gave rise to the Arkansas Democrat-Gazette’s FOIA request in the first place, which is the Quillin’s alleged misappropriation and misuse of county funds that has resulted in a criminal investigation. Accordingly, it is the context in which the e-mails were exchanged that compels the disclosure of the content of the e-mails. Where, as here, an alleged misuse of funds intersects with an extramarital affair, the timing and nature of the e-mail exchanges are material to the media’s investigation into whether a county employee conducted county business in an open and public manner.

Pulaski County has offered to provide a list of the withheld e-mails along with the sender, recipient, and date and time of transmission. This would address the disclosure of timing, but it would not address the nature of the e-mails. For instance, the Arkansas Democrat-Gazette presented e-mails released by DHFIS in which Quillin and Jane Doe conspired to arrange out-of-town travel that they could pass off as a business trip, when the trip was actually for a private liaison — facts that would not have been discoverable from the disclosure suggested by Pulaski County.

The majority concludes that an in camera review of the e-mails’ content was necessary to support the circuit court’s findings. While I agree that some of the circuit court’s findings were erroneous, an in camera review is not necessary in this particular case. We review findings of fact under a clearly erroneous standard. Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d 435 (2007). A finding of fact is clearly erroneous when, on the entire evidence, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id.

The final judgment reflects the circuit court’s finding (designated No. 9) that because the personal relationship with Jane Doe may have affected Quillin’s performance as a county employee and may have influenced Quillin’s expenditures of county funds, all aspects of the personal relationship between Quillin and Jane Doe are intertwined and enmeshed in the business relationship between Pulaski County and Jane Doe’s employer. This finding is supported by the record. The evidence presented to the circuit court demonstrates that Quillin concurrently communicated with Jane Doe via e-mail both as the county’s employee in a contractual relationship with Doe’s employer and as Doe’s paramour. The timing and nature of the e-mails between both parties are paramount to an investigation of alleged misuse of public funds.

In a separate finding (designated No. 8), the circuit court stated that “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.” I agree with the majority’s conclusion that this finding is clearly erroneous because the finding could only be supported if the circuit court had viewed the contents of the e-mails and admitted the e-mails into the record. It is undisputed that the circuit court declined to conduct an in camera review.2 The circuit court’s error on this point, however, is harmless because an in camera review is not necessary under the facts and circumstances of this case.

The majority suggests that the circuit court must conduct an in camera review in order to determine whether the e-mails constitute “public records.” I disagree. Under the statutory presumption, the e-mails are public records. An in camera review would only be useful as evidence offered by the county to rebut the presumption. As explained above, the very context of the e-mails, Quillin and Jane Doe’s relationship as business associates engaged in a romantic relationship, makes the content of the e-mails relevant to the issue — the performance or lack of performance of a government official.

Moreover, in support of its conclusion that an in camera review is necessary, the majority cites cases where the trial court had ruled in favor of the government’s refusal to disclose the requested information. See Johninson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994); Gannett River States Pub. Co. v. Ark. Indus. Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990). In those cases, we stressed that, to further the purpose of FOIA, the trial court should perform an in camera review so as to ensure that the government agency has fulfilled its affirmative duty of proving that the records are truly exempt from disclosure.3 Here, on the other hand, the circuit court has ruled in favor of the plaintiff, Arkansas Democrat-Gazette, and not the government, thereby promoting the FOIA’s policy of liberal disclosure. I also conclude that Pulaski County’s disclosure of the e-mails will not violate Jane Doe’s constitutional right to privacy. In McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), McCambridge’s son murdered his wife and child before committing suicide, and the Little Rock Police Department recovered several documents from the crime scene, including a letter to McCambridge from her son that contained sensitive information about their relationship. Id. McCambridge sued to prevent the police department from releasing the letter to the press under the FOIA on the basis that the disclosure would violate her constitutional right to privacy. Id. We agreed that disclosure of certain information under the FOIA could infringe upon an individual’s interest in avoiding disclosure of personal matters under her constitutional right to privacy. Id. We recognized, however, that a personal matter can still be disclosed if the governmental interest in disclosure under the FOIA outweighs the individual’s privacy interest. Id. We held that a personal matter is information:

(1) that the individual wants to and has kept private or confidential, (2) that, except for the challenged government action, can be kept private or confidential, and (3) that to a reasonable person would be harmful or embarrassing if disclosed.

Id. at 230, 766 S.W.2d at 914. Although we held that the letter was a personal matter, because the letter contained information bearing upon the son’s reasoning behind the suicide-murders and the public has a strong interest in announced solutions to crime, we concluded that the pubhc’s interest outweighed McCambridge’s individual interest. Id.

Here, information in the e-mails between Jane Doe and Quillin do not constitute a personal matter because, unlike in McCambridge, even if the county does not disclose the e-mails at this time, the e-mails will not remain private and confidential. The e-mails have been used in the criminal investigation of Quillin and will also be used in a subsequent criminal prosecution. Moreover, the public has a strong interest in the resolution of crimes and the performance or lack of performance of government officials. Therefore, the public’s interest in disclosure outweighs Jane Doe’s privacy interest.

On these findings and a liberal construction of “public records” in favor of disclosure, I conclude that disclosure of the e-mails at issue and their content is required to satisfy the FOIA’s purpose that public business be performed in an open and public manner. For these reasons, I would affirm the circuit court.

Glaze and Danielson, JJ., join this dissent.

The Arizona Supreme Court’s decision in Griffis v. Pinal County, 152 P.3d 418 (Ariz. 2007), is inapposite. The term “public records” is not expressly defined by statute in Arizona; nor has this court ever applied a “substantial nexus” test in its interpretation of the FOIA. Thus, the remand directive in the majority opinion, “to determine if the e-mails ‘constitute a record of performance of the official functions that are or should be carried out by a public official or employee,’ ” ignores the statutory definition of “public records” under the FOIA in favor of another jurisdiction’s interpretation of a different statute.

Pulaski County failed to proffer the e-mails. Its failure to proffer this evidence precludes our review of whether prejudice resulted from the circuit court’s failure to conduct an in camera inspection. See Duque v. Oshman’s Sporting Goods-Services, Inc., 327 Ark. 224, 937 S.W.2d 179 (1997).

As we stated in Gannett River States Publishing Co. v. Arkansas Industrial Development Commission, supra,"to hold otherwise makes the public’s right to know hopelessly subservient to the unassailable impressions of the public agency involved. The person requesting information would be unable, for lack of information, to question the agency’s decision.” 303 Ark. at 690, 799 S.W.2d at 547.