Supreme Court addressed whether a series of private emails sent and received on publiclyowned systems by government employees on government time were subject to the FOIA. The cases arose when the former Pulaski County, Arkansas, Comptroller and Director of Administrative Services was arrested for allegedly embezzling approximately $42,000 from Pulaski County. A reporter for the Arkansas Democrat-Gazette sought information regarding the former comptroller and Government e-Management Solutions, Inc. (“GEMS”), a software contractor for Pulaski County. The Arkansas Democrat-Gazette made a written request to Pulaski County seeking disclosure of, among other documents, all email between the former comptroller and employees of GEMS. Pulaski County released some, but not all, of the email correspondence requested, contending that the emails it did not release were not “public records” within the meaning of the FOIA. At a pre-trial hearing, “Jane Doe,” an employee of GEMS, was allowed to intervene to assert her privacy interest in certain emails between her and the former comptroller, with whom she had an affair. The trial court ordered all of the emails released. On expedited appeal, the Arkansas
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The Arkansas Lawyer
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Supreme Court requested the parties to brief among other issues whether personal emails sent and received on county property are exempt from FOIA and whether it is necessary for a court to do an in camera review of the emails to distinguish personal from business emails. 1. Personal emails as indicator of “lack of performance.” The court first began its discussion of this issue with an analysis of the text of the FOIA which defines public records, in pertinent part, 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 . . . .”12 The court noted that the statutory language regarding “performance” likely invites a narrower interpretation of “public records,” that is records which do not reflect either (i) performance or (ii) lack of performance could not be deemed “public records,” and thus “not all emails on Pulaski County computers are public records.”13
2. The content of the emails, not their location, is determinative The court then considered the Arkansas Democrat Gazette’s argument that the location of the personal emails—specifically, the fact that they exist on a government computer—suggests that they must be “public records.” With respect to this argument, the court considered the case law of Florida, Colorado, and Arizona, all of which provide that the determination of whether documents are “public records” requires an examination of the content, not merely the location of the emails. Although it did not adopt it expressly, the court seemed willing to adopt the standard used by the other states, which requires that, in order for personal emails to be considered “public records,” they must contain some “substantial nexus” to the employment of the individual.14 The court acknowledged its holding in previous decisions requiring that a trial court conduct an in camera review of relevant documents to determine whether an FOIA exemption to disclosure applied.15 Here, however, the court extended the application of the use of in camera review, holding that an in camera review by the circuit court would be necessary, despite the fact that an