LITTLE ROCK — If the obstructionists on the Arkansas Supreme Court think they've redeemed themselves by Thursday's ruling in the Ron Quillin/Freedom of Information Act case, they've got another think coming.
They've served neither the public interest nor the law in their handling of this matter. Under the plain language of the FOIA, not to mention decades of case law, Thursday's ruling was the one they should have made when the case first came before them, as Justice Tom Glaze noted in a dissenting opinion.
Don't fret, open-government proponents. Glaze did not disagree with the finding that the e-mails sent by Pulaski County's former comptroller to his paramour are public records under the FOIA. What he took issue with was the manner in which Justices Jim Hannah, Jim Gunter, Donald Corbin and Robert Brown handled the case when it first came before them more than three months ago.
"The majority's overly prolonged treatment of this case has completely subverted the true intent of the Arkansas Freedom of Information Act," Glaze wrote. "Indeed, instead of meeting the goals and objectives of the FOIA, this court's actions have resulted in an absurd application of the act's purpose. Oh, the irony of it!"
Irony, indeed. The purpose of the act is to make sure that government remains accountable to the people it serves. To that end, public officials are charged with responding to requests promptly, anywhere from immediately to within three days, depending on the status of information sought. Because of the unnecessary hoops that Hannah, Gunter, Corbin and Brown insisted on putting everyone through, Pulaski County officialshave dilly-dallied for almost four months. They continue to do so. I was told late Friday that it could be Tuesday before the county coughs up the e-mails.
Quillin was arrested on June 4 on suspicion of theft. In an effort to determine whether Quillin's personal interests were in conflict with his responsibilities to the public, the Democrat-Gazette requested e-mails he had exchanged with a woman who works for a company that had sold Pulaski County financial software. County officials turned over 246 such messages but withheld about 660 others on the grounds that they were "personal" in nature, so the newspaper took the matter to court.
The Democrat-Gazette won at the circuit court level, so the county appealed. In a 4-3 ruling, Hannah, Gunter, Corbin and Brown ordered the trial judge to review the withheld messages-all 660 of them-to determine whether they should be released. The judge complied and found that all but a handful should be made public. (The handful reportedly included several entirely innocuous ones and several containing sexually explicit photographs.) The county appealed again. This time it lost.
"In my view, this simple case became complex when the majority court"-Hannah, Gunter, Corbin and Brown-"attempted to put a square peg in a round hole," Glaze wrote last week. "In essence, what the majority has done is to permit a public employee to place pornographicmaterial on a public computer, where it is presumed to be a public record, but by allowing the employee to subvert the purpose and intent of the act.
"Such an employee's inappropriate conduct should not be protected under any circumstances. If the majority had ruled, as it should have, that salacious photographs and material placed on the county's computer by a county employee during working hours constitute public records, the taxpayers could readily learn how an employee performs his work and conducts the public's business. It also is reasonable to believe that, when such inappropriate conduct is subject to public exposure, that abuse will end."
Largely on the grounds that the county had failed to make its case for secrecy, Justices Paul Danielson and Annabelle Imber concurred with Thursday's ruling in part and dissented in part.
"Much has been made of whether many of the e-mails were personal, private or sexually explicit," Danielson wrote in a separate opinion. "That is of absolutely no moment as such designations are simply irrelevant to the context of an FOIA case. A review of the statutory scheme reveals no consideration as to whether the information, the disclosure of which is contested by the public agency, is personal, private or sexually explicit. The sole consideration"-emphasis Danielson's-"to determining whether the record is a public record and one subject to disclosure is whether the record itself constitutes a record of the performance or lack of performance of a public official. Any other consideration is erroneous."
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Associate editor Meredith Oakley is editor of the Voices page.
Editorial, Pages 99 on 10/07/2007