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E-mail between government employees is public

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NEWS MEDIA UPDATE   ·   IDAHO   ·   Freedom of Information   ·   May 9, 2007

NEWS MEDIA UPDATE   ·   IDAHO   ·   Freedom of Information   ·   May 9, 2007

E-mail between government employees is public

  • The state Supreme Court says electronic messages between a prosecutor and a drug court supervisor should be released under the public records law.

May 9, 2007  ·   In the first battle involving e-mail and Idaho open records law to reach the state Supreme Court, justices ruled last week that e-mail messages sent between a county prosecutor and a former county employee are public.

“The e-mails are public records and not exempt from disclosure under either statutory exemptions or constitutional law,” the court said in its unanimous five-justice opinion.

The decision upheld a 2005 ruling by an Idaho lower court in favor of The (Spokane, Wash.) Spokesman-Review. The Supreme Court affirmed that the paper had the right to read the contents of 889 e-mail messages between Kootenai County Prosecutor Bill Douglas and his subordinate, former juvenile drug court supervisor Marina Kalani.

“We’re pleased the court saw the importance of e-mails as a public record,” said Tracy LeRoy, the paper’s attorney. “The decision is important because similar cases will likely recur in the future and this will be the ruling that the courts look to. This is a type of public record that the public is interested in.”

The newspaper made a public records request in 2005 under the Idaho Public Records Act for e-mail between Douglas and Kalani spanning February 2004 to February 2005. The request was part of investigations into the downfall of the Juvenile Education and Training drug court and the essence of the relationship between Douglas and Kalani.

Kalani and Douglas had appealed the lower court ruling together, but Douglas later dropped his appeal.

Kalani’s attorney argued the e-mail messages exchanged between Kalani and Douglas did not qualify as public records under the Idaho Public Records Act. Kalani said the law only includes records of official of government business and since the e-mail messages were private in nature, they did not constitute public records.

Kalani also argued that even if the records were deemed public, they were exempt from disclosure as personnel records under the public records law.

The high court disagreed with Kalani’s first argument, saying, “The e-mail’s content is related to the public’s business because the public’s business includes job performance by a county employee, the spending policies of a county program, the issues surrounding that program’s demise. . .”

The court said the county’s e-mail policy makes it clear that the e-mail software provided to Douglas and Kalani was county property and that e-mail messages created and sent between county employees are public records.

The court also dismissed Kalani’s second argument, saying the personnel records exemption is narrowly construed and informal communication between an employee and supervisor is unrelated to personnel decisions.

Additionally, the high court rejected Kalani’s contention that disclosing the e-mail would violate her constitutional right to privacy, saying Kalani had no reasonable expectation of privacy because of the county e-mail policy that she signed. The policy says employees have no right to personal privacy when using e-mail systems provided by the county and that e-mail messages are public records.

However, the Supreme Court affirmed the lower court’s decision that the details of a cash settlement between the county and Kalani should remain private. The county’s insurance company reached the settlement with Kalani after the drug court program was broken up.

“The amount of the settlement released to the newspapers differed from the amount disclosed in the court documents,” LeRoy said. “The difference was slight, but it’s something that concerns us” because the public should know the accurate details.

The Friday ruling has 21 days before it becomes final to allow for potential appeals.

LeRoy said the high court’s ruling about the e-mail will likely be applied to a second case in the same lower court where the Kalani case originated.

The case involves Kootenai County’s former chief deputy prosecutor, who resigned in February amid sexual-harassment allegations. The Spokesman-Review also requested the release of e-mail in that case.

(Cowles Publ’g Co. v. Kootenai County Board of County Commissioners, Media Counsel: Tracy N. LeRoy, Witherspoon, Kelley, Davenport & Toole, P.S., Spokane, Wash.)NC

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