Aug. 13, 2007 · An Arkansas judge has ordered the release of sexually explicit e-mail messages, saying they reflect on the job performance of the public official who used his government account to send and receive them.
Judge Mary Ann McGowan ruled that correspondence between a Pulaski County official and a computer software contractor with whom he was romantically linked would provide insight into the official’s use of public time and resources.
In a 13-page decision, McGowan described a few of the e-mail messages being sought by the Arkansas Democrat-Gazette, demonstrating how business and personal business were frequently interspersed through a given electronic conversation. The judge reprinted one exchange where the county official asks what type of doughnuts he should bring to an upcoming business meeting. The software contractor says none, explaining she needs to fit into a bikini in six weeks.
That prompts the county official to respond that he would like to see her in the bikini. “If you weren’t so damn gorgeous it wouldn’t be an issue at all,” he wrote. “Then all I’d be influenced by is charm, intellect, and personality. and (sic) I’d still be lusting or perving! ILU!”
McGowan ordered virtually all of the e-mail messages released, saying “there is no question” they reflect on the performance of official functions, including whether extra county travel funds were allocated so the official could see the contractor more frequently.
This “official function” standard for releasing arguably personal e-mail stored on public computers under the Arkansas Freedom of Information Act was established by the Arkansas Supreme Court in July, when it ruled that the disputed e-mail in this case could not be released simply because it was created on public computers. In that July opinion, the Supreme Court sent the case back to McGowan, who applied the newly announced standard in her Aug. 2 ruling.
Rick Peltz, a professor of law at the University of Arkansas, said open government advocates were disappointed in the Supreme Court’s July opinion, but will be pleased with McGowan’s inclusive approach to what sheds light on the performance of official functions.
Peltz said the content of the e-mail messages described in the opinion did not indicate there was any highly graphic sexual material, and government lawyers should have been more willing to release much of this information sooner.
“The vast majority of the emails are not that,” he said. “They are indicative of a relationship between those two people. They could have split that baby a little more in favor of access.”
(Arkansas Democrat-Gazette, Inc. v. Pulaski County, Media Counsel: Philip Anderson, Williams & Anderson, Little Rock, Ark.) — NW