Court unseals filings in Quillin e-mail case
Posted on Saturday, September 1, 2007
Pulaski County believes a trial judge erred in ordering all but nine of former Pulaski County Comptroller Ron Quillin's 668 e-mails with a vendor released, noting that dozens of the 659 remaining were chain e-mails and contained family photographs similar to those withheld and that 504 of them were personal.
That argument was revealed when the Arkansas Supreme Court released briefs late Friday afternoon that were filed this week in an ongoing Freedom of Information Act lawsuit involving Pulaski County, the Arkansas Democrat-Gazette and the vendor, Cheryl Zeier.
After Quillin's June 4 arrest over allegations that he stole $ 42, 000 in county funds, e-mails released by the state revealed he was having an affair with Zeier. He left county employment in late April to become chief financial officer over the state Medicaid program and was fired after his arrest.
Zeier is director of client services for Government e-Management Solutions, a company Pulaski County has paid more than $ 1. 1 million over four years for financial software, training and maintenance.
The newspaper sought access to Quillin's county exchanges with Zeier and other Government e-Management Solutions employees in a Freedom of Information Act request and was given 246 of the messages. Reporters soon learned that not every e-mail was turned over, and Pulaski County Judge Buddy Villines said he thought the unreleased e-mails were personal and had nothing to do with county business.
The e-mails are part of the county's criminal case against Quillin, who was formally charged this week with two felony counts of forgery, one felony count of theft and a misdemeanor count of abuse of office.
Circuit Judge Mary Spencer McGowan ruled June 19 that the e-mails were public record. The Supreme Court remanded the case in July, telling McGowan to review each of the 668 e-mails to determine if they were public records. McGowan ruled on Aug. 2 that all but nine of the e-mails should be released.
Because the county's briefs Wednesday in its latest appeal to the Supreme Court included a compact disc that held the emails in question, the court clerk sealed the entire file.
On Friday, the court unsealed the briefs in response to a motion filed Thursday by newspaper attorney Jess Askew III. The CD contains all 668 e-mails and remains confidential, although the county said 65 of the e-mails were released in June when the newspaper filed its original Freedom of Information Act request.
The newspaper's brief said the Democrat-Gazette doesn't object to McGowan's ruling preventing the release of seven chain e-mails and six sexually explicit photographs in two other e-mails, saying the appeal relates only to the e-mails that McGowan found were public records on Aug. 2.
The newspaper also argues that Pulaski County has "flagrantly violated the letter, purpose and spirit of the FOIA and has attempted to confuse and distort the application of the definition of public records to emails."
Quillin has not asserted any privacy rights in the matter, according to the newspaper's brief, and "if Pulaski County had believed these records were not subject to FOIA, the proper course would have been to seek an opinion from the Attorney General. This is the time-honored and well established safe harbor for a public agency that needs guidance on application of the FOIA."
There should be no difference between paper records and e-mails, the newspaper argues, and if Quillin had labeled paper files with "personal"headings, the papers inside the file would still be public record because the definition does not depend on a label attached to a file by a county employee.
"Now that each email has been painstakingly reviewed by the trial court, it is evident that Pulaski County falsely characterized these emails as 'purely personal' and not containing any discussion of county business,"the newspaper's brief states.
Both the county and Zeier's attorney list in their briefs the number of e-mails they believe constitute public, private and possibly mixed private and public records.
The county believes Mc-Gowan erred in her Aug. 2 decision, saying she determined that the e-mails were public record based on the overall context of Quillin's relationship with Zeier and not the content of the e-mails. McGowan also relied on the fact that the majority of the e-mails were written during business hours, according to the brief.
County attorneys point out that McGowan cited "only 25 to 50 e-mails"in her decision and didn't address each e-mail individually.
Pulaski County's brief also revealed more information about the e-mails Quillin, who is married, exchanged with Zeier, who is also married. The county argues:
504 of the 668 e-mails are "clearly personal,"while 21 more are similar to e-mails that Mc-Gowan ruled on Aug. 2 should not be released.
Other e-mails include photographs of people unrelated to the county or the vendor, or text messages that don't refer to Pulaski County activities. Five e-mails contain photographs and other information relating to a family member who is a minor and don't mention Pulaski County activities, according to the brief.
"These documents should be treated no differently than a family photograph located in a public employee's office. They do not reflect the performance or lack of performance of any official function and are not being maintained by Pulaski County."20 other chain e-mails that "contain nothing concerning county business or the relationship between the vendor and the county official."
Nine e-mails, while public record, were not from or to employees of Government e-Management Solutions and didn't fall under the newspaper's Freedom of Information Act request. 27 e-mails dealt with travel plans, directions and hotel confirmations that do not contain any information regarding the source of payment or Pulaski County, according to the brief. "Private travel plans of public employees should not be subject to the FOIA,"it states. 65 of the e-mails were copies of messages Pulaski County has already turned over. 23 e-mails, according to the brief, started off as business discussions and developed into private conversations.
"Clearly the original discussion involving county business is a public record. The question becomes how to treat the later documents in the series,"the county's brief states.
Several e-mails are overwhelmingly personal, but a general reference is made to work, such as "I HATE WORKING WITH A ** HOLES."
Zeier's attorney argues that some of the e-mails were actually copies of text messages sent to telephones and are exchanges that were private. Disclosing the e-mails would infringe on Zeier's right to privacy, Blake Hendrix's brief states.
The county also objects to releasing e-mails that deal with Quillin's finances, such as one containing a copy of a check written to Zeier for $ 912 signed by Quillin with a note that it is for a suit of clothes and handling fee.
The check isn't a county check, according to the brief, and the "release of personal financial documents without any redaction of account numbers or other personal information would subject all public employees to potential theft, identity theft or fraud."
Although McGowan found that an e-mail between Zeier and Quillin in which Zeier wrote," Hey now. This is work email. goofball !"resolved the issue of any expectation of privacy, the county points out other e-mails from Zeier included confidentiality statements, and Quillin wrote in another that he started to reply to a business e-mail but thought a separate one "would be safer."
The county's brief says: "A concern that an employer might review an e-mail on a work computer is very different from the concern that the document may be accessible by the entire citizenry of the State of Arkansas."
The newspaper and county differ on why the e-mails are being sought, with the newspaper believing that they act as a record of Quillin's work performance, while county attorneys argue that the e-mails are being sought because they exist on a county computer.
The newspaper also argues that neither the county nor Zeier has the right to raise privacy issues. The county isn't an individual, and Zeier is a Missouri resident, the newspaper's brief states.
Attorneys are supposed to file counterbriefs by Tuesday, and the Supreme Court has said it will expedite the case.
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