{ "id": 3489798, "name": "PULASKI COUNTY v. ARKANSAS DEMOCRAT-GAZETTE, INC.; Jane Doe, Intervenor", "name_abbreviation": "Pulaski County v. Arkansas Democrat-Gazette, Inc.", "decision_date": "2007-10-04", "docket_number": "07-669", "first_page": "217", "last_page": "228", "citations": [ { "type": "official", "cite": "371 Ark. 217" }, { "type": "parallel", "cite": "264 S.W.3d 465" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "367 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3696202 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/367/0241-01" ] }, { "cite": "369 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 4016024 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/369/0201-01" ] }, { "cite": "366 Ark. 463", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3655598 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/366/0463-01" ] }, { "cite": "368 Ark. 93", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3798607 ], "weight": 4, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/368/0093-01" ] }, { "cite": "429 U.S. 589", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7501 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/429/0589-01" ] }, { "cite": "298 Ark. 219", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889932 ], "weight": 2, "year": 1989, "pin_cites": [ { "parenthetical": "citing Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869 (1977)" }, { "parenthetical": "citing Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869 (1977)" } ], "opinion_index": 0, "case_paths": [ "/ark/298/0219-01" ] }, { "cite": "433 U.S. 425", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180181 ], "year": 1977, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/us/433/0425-01" ] }, { "cite": "369 Ark. 498", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 4017700 ], "weight": 3, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/369/0498-01" ] }, { "cite": "370 Ark. 435", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5567565 ], "weight": 3, "year": 2007, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/370/0435-01" ] }, { "cite": "327 Ark. 224", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922567 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark/327/0224-01" ] }, { "cite": "313 Ark. 527", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914602 ], "weight": 4, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark/313/0527-01" ] }, { "cite": "362 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3560063 ], "weight": 2, "year": 2005, "opinion_index": 1, "case_paths": [ "/ark/362/0001-01" ] }, { "cite": "333 Ark. 451", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703807 ], "weight": 2, "year": 1998, "opinion_index": 1, "case_paths": [ "/ark/333/0451-01" ] }, { "cite": "358 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8451955 ], "weight": 2, "year": 2004, "opinion_index": 1, "case_paths": [ "/ark/358/0251-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-19-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 25-19-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 25-19-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 2005, "pin_cites": [ { "page": "(5)(A)" }, { "page": "(5)(A)", "parenthetical": "emphasis added" }, { "page": "(5)(A)" } ], "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 12-19-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "opinion_index": 2 }, { "cite": "Ark. Code Ann. \u00a7 25-19-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 2 } ], "analysis": { "cardinality": 973, "char_count": 25739, "ocr_confidence": 0.787, "pagerank": { "raw": 3.79529397738031e-07, "percentile": 0.8971967091517691 }, "sha256": "dbcd48063f417dd42bd811255140f824328c5ee35141bc9d0e0d0f83ef26e185", "simhash": "1:8b5d7f976c4b6bf1", "word_count": 4282 }, "last_updated": "2023-07-14T22:33:16.265391+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Danielson and Imber, JJ., concur in part and dissent in part.", "Glaze, J., dissents.", "Imber, J., joins." ], "parties": [ "PULASKI COUNTY v. ARKANSAS DEMOCRAT-GAZETTE, INC.; Jane Doe, Intervenor" ], "opinions": [ { "text": "Jim Gunter, JustPulaski\nThis appeal arises from an order of the Pulaski County Circuit Court ordering certain e-mails to be released because they constitute \u201cpublic records\u201d under the Arkansas Freedom of Information Act (FOIA), codified at Ark. Code Ann. 25-19-101 et seq. (Supp. 2005). On appeal, Pulaski County argues that the circuit court erred by fading to follow the mandate issued by this court after we remanded the case on July 20,2007, for an in camera review of the e-mails. Jane Doe argues that the circuit court erred in ordering the release of certain e-mail messages, as it violates her right to privacy. She also maintains that she has standing to raise these issues under the FOIA. We affirm the circuit court\u2019s order releasing the e-mails and hold that Jane Doe has waived her privacy rights in this case.\nThe facts of this case are set forth at length in our July 20, 2007 per curiam opinion. See Pulaski County v. Arkansas Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007) (per curiam). Throughout the events at issue in this case, Pulaski County was in a contractual relationship with Government e-Management Solutions, Inc. (GEMS). Ron Quillin, Pulaski County Comptroller and Director of Administrative Services, represented Pulaski County in this contractual relationship. Jane Doe represented GEMS. Quillin and Doe entered into a romantic relationship during the course of this business relationship. Quillin was responsible for the flow of public funds from the County to GEMS. On June 4, 2007, Quillin, who had been fired from his position with the County, was arrested for allegedly embezzling approximately $42,000 from Pulaski County.\nOn June 14, 2007, Appellee Arkansas Democrat-Gazette, Inc., filed a complaint in the Pulaski County Circuit Court, alleging that certain e-mails were public records pursuant to the FOIA. On June 25, 2007, the circuit court ruled that the e-mails were public records and ordered them to be released to the Democrat-Gazette. On appeal, we remanded the case with instructions to the circuit court to review the e-mails in camera. On August 2, 2007, the trial court entered its order releasing all of the e-mails with the exception of six graphic, sexually explicit photos and seven e-mails sent on a chain of forwards. Pulaski County now appeals.\nI. Jane Doe\u2019s issues\nAt the outset, we turn to the issue of whether Jane Doe has standing to contest the disclosure of the e-mails. Doe asserts that she has standing to raise an FOIA issue because she has a personal stake in the outcome of this proceeding. She argues that if the e-mails are released, she will suffer irreparable damage to her reputation and the e-mails could be exploited for the prurient interest of others. Further, she asserts that these messages contain personal matters that would constitute an unwarranted invasion of her constitutional right to privacy. In response, the Democrat-Gazette argues that Doe has no standing under the Arkansas FOIA because she is a citizen of Missouri.\nThe question of standing is a matter of law for this court to decide, and this court reviews questions of law de novo. Arkansas Beverage Retailers Ass\u2019n, Inc. v. Moore, 369 Ark. 498, 256 S.W.3d 488 (2007). Only a claimant who has a personal stake in the outcome of a controversy has standing. Id. Here, Doe is not attempting to gain access to public records; she is merely trying to block the disclosure of e-mails that she sent and received. Therefore, she has a personal stake in the outcome of this case. Thus, even though she is not a citizen of Arkansas, we hold that she has standing to assert a privacy interest.\nWe now turn to Doe\u2019s constitutional argument. Specifically, Doe argues that disclosure of the e-mails constitutes a violation of her constitutional right of privacy as recognized in an individual\u2019s interest in avoiding disclosure of personal matters by government. See Nixon v. Administrator of General Services, 433 U.S. 425, 455 (1977); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989) (citing Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869 (1977)). As the present appeal is from a bench trial, our standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge\u2019s findings were clearly erroneous or clearly against the preponderance of the evidence. Williams, v. Wayne Farms, LLC, 368 Ark. 93, 243 S.W.3d 316 (2006). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id. Facts in dispute and determinations of credibility are within the province of the fact-finder. Id.\nIn the instant case, the trial court ruled that Doe had no expectation of privacy when conversing with Quillin on a county computer or the software vendor\u2019s business e-mail. We simply cannot say that the trial court erred in this regard because the romantic relationship between Quillin and Doe was indistinguishably intertwined with the business relationship between the County and GEMS. The cases relied on by Doe are simply inapposite, as neither of those cases presents facts as peculiar as those found in this case. Under the facts of this case, where the messages often contained both business matters and personal issues, Doe, a contractor for the County, waived any right of privacy she may have had.\nBefore leaving this point, we note that the circuit court found that one particular e-mail exchange between Quillin and Doe sent on March 12, 2006, beginning at 9:44 a.m., is evidence that Doe lost any expectation of privacy. The sexually explicit exchange concludes by Doe\u2019s response: \u201cHey now. This is work email, goofball!\u201d Quillin then responds at 9:58 a.m.: \u201cDelete, delete, delete . . . .\u201d This e-mail exchange proves that Doe knew the risk that the e-mails could become public, yet she continued to e-mail Quillin on the county\u2019s computer, and therefore, lost any expectation of privacy.\nThe mandate rule\nNext, we turn to the sole issue raised by Pulaski County, namely that the circuit court violated our mandate by basing its conclusion on the overall context of the relationship between Quillin and Doe rather than the content of the e-mails. A lower court is bound by the judgment or decree of a higher court as law of the case and must carry the decision of the higher court into execution pursuant to the mandate issued by that court. Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 366 Ark. 463, 237 S.W.3d 20 (2006). On remand, we instructed the circuit court to conduct an in camera review to determine if the e-mails \u201cconstitute a record of the performance of official functions that are or should be carried out by a public official or employee,\u201d thereby making them \u201cpublic records\u201d pursuant to the FOIA. See Pulaski County, supra. The circuit court noted in its order that \u201c[i]t became apparent that a listing of each e-mail would not be expedient.\u201d Nevertheless, it appears that the circuit court reviewed each e-mail for content as instructed. Based on the circuit court\u2019s order, it is clear to us that the trial court followed our directive, and Pulaski County has put forth no evidence to the contrary. The record simply does not support the County\u2019s assertion that the circuit court failed to follow the mandate issued on remand.\nThe County argues that the circuit court further erred in basing its decision on whether e-mails were subject to disclosure on context rather than content. The record shows that the circuit court reviewed the e-mails based on content, and there is no error in that regard. Further, to the extent that the County is arguing that the circuit court erred in its factual decisions on whether the e-mails relate solely to personal matters or whether they reflect a substantial nexus with the County\u2019s activities, and are therefore public records subject to disclosure, the County has failed to provide convincing argument that the circuit court was clearly erroneous in this regard. We will not consider an argument, even a constitutional one, when the appellant presents no convincing argument in its support. Childers v. Payne, 369 Ark. 201, 252 S.W.3d 129 (2007). For these reasons, we will not reach the merits of Pulaski County\u2019s arguments.\nAffirmed.\nDanielson and Imber, JJ., concur in part and dissent in part.\nGlaze, J., dissents.\nThe Democrat-Gazette has not sought disclosure of either the sexually explicit photos or the forwards; thus, any issue regarding these e-mails is moot. We do not address moot issues. Alexander v. McEwen, 367 Ark. 241, 239 S.W.3d 519 (2006).", "type": "majority", "author": "Jim Gunter, JustPulaski" }, { "text": "Paul E. Danielson, Justice,\nconcurring in part, dissenting in part. Despite any ice, that the \u201cship has already sailed,\u201d I write to make clear that I disagree with the majority\u2019s handling of this case from the very beginning. While I concur with the majority\u2019s decision that Pulaski County and the intervenor have not demonstrated that the circuit court\u2019s findings were clearly erroneous, I continue to adhere to my original opinion that Pulaski County and the intervenor failed to rebut the statutory presumption that the contested emails constituted public records in the initial hearing before the circuit court. In addition, both Pulaski County and the intervenor, by failing to proffer the contested emails to the circuit court during the initial hearing, failed to make a record sufficient to preserve their arguments for appeal, from the beginning. For these reasons, I concur in part and dissent in part.\nInitially, I must point out that, from the beginning, the majority completely lost sight of and ignored the Arkansas Freedom of Information Act (FOIA) statutory scheme and our case law. The remand of this matter to the circuit court for an in camera review was erroneous and completely disregarded the rebuttable presumption established by the General Assembly in Ark. Code Ann. \u00a7 25-19-103(5)(A) (Supp. 2005). Section 25-19-103(5)(A) defines \u201cpublic records\u201d and establishes the presumption:\n(5) (A) \u201cPublic records\u201d means 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, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.\nArk. Code Ann. \u00a7 25-19-103(5)(A) (Supp. 2005) (emphasis added). The statute makes very clear that, while presumed a public record, an email will not constitute a public record if it does not constitute a record of an employee\u2019s performance or lack of performance of official functions.\nHere, the emails at issue were presumed to be public records; thus, it was presumed that the emails were writings required to be kept or otherwise kept and were a record of the performance or lack of performance of official functions by a government employee. In order to prohibit the release of the emails, Pulaski County and the intervenor had to rebut that presumption, but they did not. Thus, the emails were presumed to be public records, which were subject to disclosure, and the circuit court correctly so held in the initial hearing. In short, the circuit court was correct the first time.\nHowever, instead of affirming the circuit court\u2019s ruling in this matter, the majority remanded, giving Pulaski County and the intervenor a second bite at the apple. That is the point at which this case went awry, and the reason I continue to dissent in part.\nNonetheless, with respect to the merits, and assuming that Pulaski County and the intervenor had attempted to rebut the presumption during the initial hearing, I would affirm the circuit court\u2019s decision, which was rendered upon remand. I must emphasize that I am in no way stating that every email sent from or delivered to a government computer or government email account constitutes a public record under the FOIA, codified at Ark. Code Ann. \u00a7\u00a7 25-19-101 - 25-19-109 (Repl. 2002 & Supp. 2005). So the circuit court found in its initial order, wherein it said:\nThe Court wants to make clear, however, that the facts in this case are determinative as to the finding that these emails are public records. In no way is this Court finding that all emails on Pulaski County computers are, in fact, public records. In short, those decisions must be made on a case by case basis.\nThat being said, it is clear to me, under the facts of this case, and as the circuit court found, that the emails at issue constituted public records and were subject to disclosure under the FOIA. Thus, in an effort to provide guidance for future FOIA cases and in an effort to prevent similar time delays in such cases, I believe some analysis is necessary to support my position that the circuit court\u2019s decision was not clearly erroneous.\nAs already stated, a public record is a (1) record, required to be kept or otherwise kept, (2) that constitutes 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. See Ark. Code Ann. \u00a7 25-19-103(5)(A). The emails at issue were kept, such that the first element of the definition was met. At issue in the instant case, and in most FOIA cases, is whether or not the emails at issue were a record of performance or lack of performance of official functions by Quillin. Based on the facts of this case, I would hold that the emails were.\nIt is further my opinion that, once a public agency has attempted to rebut the presumption that a record was, or records were, a public record, which necessarily requires the introduction of the challenged records into the record, it is incumbent on the circuit court to examine each contested record to determine whether or not it constitutes a public record, under the definition in the statute. That is because each record must constitute a record of performance or lack of performance of official functions in order to be disclosed under the FOIA.\nIn this case, the circuit court, on remand, reviewed the emails and found that the emails reflected on the performance of official functions by Quillin. Further, it found that all of the emails should be released because they constituted a public record of the performance of official functions and because it was impossible to discern which particular email or portion of email was strictly personal and bore no relationship to business. The circuit court, however, did find that certain emails containing explicit photographs were not subject to release and that seven other contested emails were not public records subject to disclosure.\nI agree with the circuit court, but for different reasons. Much has been made of whether many of the emails were personal, private, or sexually explicit. That is of absolutely no moment as such designations are simply irrelevant in the context of a 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 in 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.\nA review of the circuit court\u2019s findings with respect to the emails in the instant case, the disclosures of which were challenged by Pulaski County and the intervenor, reveals that each email was a recording of Quillin\u2019s performance or lack of performance in his official function. Each contested email\u2019s content demonstrated Quillin\u2019s involvement, outside of work, with an individual whose job was, at least in part, dependent upon Pulaski County\u2019s contract with her employer, a contract which was overseen by Quillin. For that reason, I agree with the circuit court\u2019s conclusion and would affirm the order of disclosure rendered by the circuit court, as the majority does.\nOur General Assembly has clearly pronounced the necessity of the FOIA to review public business and how it is conducted:\nIt is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them or their representatives to learn and to report fully the activities of their public officials.\nArk. Code Ann. \u00a7 25-19-102 (Repl. 2002) (emphasis added). As we have said, our role in determining whether something constitutes a \u201cpublic record\u201d is limited to interpreting the FOIA statute. See, e.g., Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004). To that end, we liberally construe the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. See Arkansas Dep\u2019t of Fin. & Admin. v. Pharmacy Assocs., Inc., 333 Ark. 451, 970 S.W.2d 217 (1998).\nIn the present day and age, the internet and electronic technology are prevalent and their use is ever increasing in government business, which results in issues such as the one in the instant case. For that reason, the General Assembly has clearly contemplated that public records may exist in electronic form. Whether the records at issue are in electronic or paper form, our role remains the same. We are limited to reviewing and interpreting the FOIA statutes, as it is not our job to create public policy. See, e.g., Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005).\nIn sum, the majority\u2019s erroneous actions in this case via its initial per curiam order, which gave Pulaski County and the intervenor yet another chance to rebut the statutory presumption and which they failed to do yet again, has resulted in a delay in this case of more than three months and counting since the original request for disclosure. This clearly flies in the face of the purpose of Arkansas\u2019s FOIA. Nonetheless, it is my opinion, were I to reach the merits, that based on the exceedingly clear language of the statute and the uncontroverted facts of this case, the contested emails at issue, excepting the seven emails excluded by the circuit court from disclosure, were indeed records of Quillin\u2019s performance or lack of performance of official functions and, therefore, constituted public records subject to disclosure under the FOIA. As a result, the circuit court\u2019s findings were not clearly erroneous. However, because I continue to believe that Pulaski County and the intervenor failed to rebut the statutory presumption during the initial hearing in this matter and failed to bring up a proper record for review after that hearing, I must respectfully dissent in part and concur in part.\nImber, J., joins.\nIn doing so, the majority completely ignored our long-standing tenet of law that it is the appellant\u2019s duty to bring up a record sufficient to demonstrate error. See, e.g., MIC v. Barrett, 313 Ark. 527, 855 S.W.2d 326 (1993).\nWhile one might argue that Pulaski County attempted to rebut the presumption when it requested the circuit court to review the emails in the initial hearing, Pulaski County failed to make its record when it faded to proffer the emails it contested and that the circuit court declined, at that time, to review. Thus, the emails were never made a part of the record during the initial hearing. In order to make a record, one must make a proffer. The failure to proffer evidence so that this court can determine prejudice precludes review of the evidence on appeal. See Duque v. Oshman\u2019s Sporting Goods Servs., Inc., 327 Ark. 224, 937 S.W.2d 179 (1997). Moreover, as already stated, it is the appellant\u2019s duty, and not that of the circuit court, to demonstrate error in the proceedings below and to bring up a record sufficient to demonstrate error. See, e.g., MIC v. Barrett, 313 Ark. 527, 855 S.W.2d 326 (1993).\nThe same holds true for the proceedings on remand; Pulaski County and the intervenor did not attempt to rebut the presumption, even after being given a second chance to do so by the majority of this court.\nThis of course presumes that the agency has proffered the records it does not consider to be public to the circuit court for such a determination, which was clearly not the case during the initial hearing in the case at hand.\nThe circuit court\u2019s decision as to those records has not been challenged by either party, as recognized by the majority.\nAs I have said, my opinion is premised on the facts of this case. Were a public official or employee to have a relationship of sorts with someone not so closely intertwined to the expenditure of public funds, sending emails similar to the ones at issue here, I could not say that those emails would constitute a public record under section 25-19-103(5)(A), rendering them subject to disclosure. Here, it is the fact that each email\u2019s content demonstrated a relationship between Quillin and someone employed by a county vendor, whose account and contract were overseen by Quillin, that rendered each email between Quillin and the intervenor records of Quillin\u2019s performance or lack of performance of official functions.\nWhile recognizing that the issue is not before us, I would have also ordered the disclosure of what have been termed the \u201csexually explicit\u201d emails, under the facts of this case. As already stated, there is no mention or exception for sexually-explicit records contained within the FOIA. Thus, they too constituted a record of Quillin\u2019s performance or lack of performance, for the same reasons as the other emails.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Paul E. Danielson, Justice," }, { "text": "Tom Glaze, Justice,\ndissenting. The Arkansas Democratstice, request for the Pulaski County email records generated by its employee, Ron Quillan, three and a half months ago. The newspaper still has not received them. The FOIA law is designed so the custodian of the records shall, within twenty-four hours of the receipt of a request for the examination or copying of records, make efforts to the fullest extent possible to determine whether the records are exempt from disclosure and make efforts to notify the persons making the request and the subject of the record of that decision. See Ark. Code Ann.. \u00a7 25-19-105(c)(3)(A) (Repl. 2002); see also Ark. Code Ann. \u00a7 25-19-107(b) (Repl. 2002) (setting out the process for expeditingjudicial review for those whose requests for records have been denied). Pulaski County has done nothing but delay access to the records, contrary to the intent of the Act.\nAs pointed out in Justice Paul Danielson\u2019s opinion, the majority court exacerbated the delays in this case when it handed down a 4-3 per curiam opinion on July 20, 2007, remanding the matter to the circuit court for'an in camera review. Justice Daniel-son is correct in saying that the majority completely lost sight of and ignored the FOIA\u2019s statutory scheme and our case law, when Pulaski County never attempted to rebut the circuit court\u2019s findings and ruling that the emails in question were public records.\nIn my view, this simple case became complex when the majority court attempted to place a square peg in a round hole. In essence, what the majority has done is to permit a public employee to place pornographic material on a public computer, where it is presumed to be a public record, but, by allowing the employee to call the material \u201cpersonal\u201d or \u201cprivate,\u201d has enabled that public employee to subvert the purpose and intent of the Act. Such an employee\u2019s 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\u2019s computer by a county employee during working hours constitute public records, the taxpayers could readily learn how that employee performs his work and conducts the public\u2019s business. It also is reasonable to believe that, when such inappropriate conduct is subject to public exposure, that abuse will end.\nThe Freedom of Information Act provides that \u201c[i]t is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy.\u201d See Ark. Code Ann. \u00a7 12-19-102 (Repl. 2002). The majority\u2019s overly prolonged treatment of this case has completely subverted the true intent of the Arkansas Freedom of Information Act; indeed, instead of meeting the goals and objectives of the FOIA, this court\u2019s actions have resulted in an absurd application of the Act\u2019s purpose.\nOh, the irony of it all!\nJustice Danielson\u2019s opinion appears to show a willingness to assume Pulaski County made some attempt to rebut the presumption of public records at the initial hearing. I disagree with any such interpretation of the facts.", "type": "dissent", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Karla M. Burnett, Pulaski County Att\u2019y, Amanda M. Mitchell, Asst. Pulaski County Att\u2019y, and Chastity D. Scifres, Pulaski County Staff Att\u2019y, for appellant.", "Williams & Anderson, PLC, by: Jess Askew, III, Clayborne S. Stone and Alison Dennington, for appellee.", "J. Blake Hendrix, for intervenor Jane Doe." ], "corrections": "", "head_matter": "PULASKI COUNTY v. ARKANSAS DEMOCRAT-GAZETTE, INC.; Jane Doe, Intervenor\n07-669\n264 S.W.3d 465\nSupreme Court of Arkansas\nOpinion delivered October 4, 2007\nKarla M. Burnett, Pulaski County Att\u2019y, Amanda M. Mitchell, Asst. Pulaski County Att\u2019y, and Chastity D. Scifres, Pulaski County Staff Att\u2019y, for appellant.\nWilliams & Anderson, PLC, by: Jess Askew, III, Clayborne S. Stone and Alison Dennington, for appellee.\nJ. Blake Hendrix, for intervenor Jane Doe." }, "file_name": "0217-01", "first_page_order": 243, "last_page_order": 254 }