Pulaski County v. Arkansas Democrat-Gazette, Inc.

Jim Gunter, JustPulaski

This appeal arises from an order of the Pulaski County Circuit Court ordering certain e-mails to be released because they constitute “public records” 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’s order releasing the e-mails and hold that Jane Doe has waived her privacy rights in this case.

The 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.

On 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.¹ Pulaski County now appeals.

I. Jane Doe’s issues

At 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.

The 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’n, 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.

We now turn to Doe’s 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’s 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’s 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.

In 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’s 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.

Before 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’s response: “Hey now. This is work email, goofball!” Quillin then responds at 9:58 a.m.: “Delete, delete, delete . . . .” 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’s computer, and therefore, lost any expectation of privacy.

The mandate rule

Next, 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 “constitute a record of the performance of official functions that are or should be carried out by a public official or employee,” thereby making them “public records” pursuant to the FOIA. See Pulaski County, supra. The circuit court noted in its order that “[i]t became apparent that a listing of each e-mail would not be expedient.” Nevertheless, it appears that the circuit court reviewed each e-mail for content as instructed. Based on the circuit court’s 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’s assertion that the circuit court failed to follow the mandate issued on remand.

The 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’s 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’s arguments.

Affirmed.

Danielson and Imber, JJ., concur in part and dissent in part. Glaze, J., dissents.

1 The 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).