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Personal e-mail on public computers not always public

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NEWS MEDIA UPDATE   ·   ARKANSAS   ·   Freedom of Information   ·   July 23, 2007

NEWS MEDIA UPDATE   ·   ARKANSAS   ·   Freedom of Information   ·   July 23, 2007

Personal e-mail on public computers not always public

  • The state high court said a content-driven analysis by a neutral body should determine whether personal e-mail is subject to state open record laws.

July 23, 2007  ·   The Supreme Court of Arkansas ruled Friday that personal e-mail messages stored on state-owned computers should be reviewed by a “neutral court” to determine whether they qualify as public records and are subject to the state Freedom of Information Act.

Arkansas’ statute defines public records as data “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 . . . or any other agency wholly or partially supported by public funds or expending public funds.”

The court noted that with the prevalence of employees using computers at work for personal e-mail, such correspondence on public computers does not automatically count as a record of the “lack of performance of official functions.”

It went on to adopt a content-driven analysis to determine whether e-mail messages on public computers count as public records and sent the case back to the lower court to review the e-mail in question and determine whether there is a nexus between the e-mail and official state activity.

The case stems from the June arrest of former Pulaski County official Ronald Quillin for allegedly embezzling approximately $42,000 from county funds. The Arkansas Democrat-Gazette in Little Rock filed a Freedom of Information Act request asking for all e-mail and recorded communication between Quillin and the employees of a software contractor for the county.

A trial judge said the e-mail was subject to the public records act, but the Supreme Court agreed to stay the decision while it heard the county’s appeal.

Philip Anderson, primary counsel for the Democrat-Gazette, said that the language of the Arkansas law would indicate that personal e-mail made on public computers are public records since they are a record of the “performance or lack of performance” of official functions.

“We are disappointed that the court ordered a review of the e-mail because we think that the fact that they were created on a computer owned and operated by a government entity should be sufficient to gain access to them to show how the employee who used the account was performing his job,” Anderson said.

It is uncertain how the lower court will rule on its review of the e-mail, Anderson said, since the Supreme Court did not provide a standard with which to evaluate the e-mail.

“There’s no guidance at all given in the opinion,” Anderson said. “I regret that the court did not provide some guidelines for this judge and for any other judge who has the same problem.”

(Pulaski County v. Arkansas Democrat-Gazette, Media Counsel: Philip Anderson, Williams & Anderson, Little Rock, Ark.)JB

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