From THE SPOKESMAN-REVIEW.
Court yet to rule whether privacy can exempt records from disclosure
Susan Drumheller
Staff writer
April 19, 2005
E-mail exchanges between the Kootenai County prosecutor and an employee are public records and are not exempt from the Idaho open records law, a 2nd District judge said Monday.
But Judge John R. Stegner of Lewiston said he still must decide if the Idaho Constitution grants public employees an overriding right to privacy, which would exempt the records from disclosure.
Cowles Publishing Co., which owns The Spokesman-Review, has sued the Kootenai County Board of Commissioners to gain access to all e-mail between Prosecutor Bill Douglas and former Juvenile Education and Training (JET) Court coordinator Marina Kalani.
If Stegner rules in favor of the newspaper, the 889 e-mail messages at issue won’t be released to the public until any potential appeals are resolved, he said.
The Lewiston judge was assigned to the case to avoid any potential conflict of interest for Kootenai County judges.
The Spokesman-Review’s initial request for the e-mail on March 10 was partially filled when the county provided copies of 461 of 1,060 e-mail messages between Douglas and Kalani, who was hired in the spring of 2004 as JET Court coordinator. Of the e-mail messages released, 290 were heavily edited.
Most of the e-mail made public addressed the day-to-day operations of the JET Court, upcoming conferences and some references to the court’s recent financial troubles and lack of participation by juveniles.
Spokesman-Review reporter Erica Curless made her request after JET Court’s supervising judge, District Judge Benjamin Simpson, quit after expressing in a memo that he had “serious concerns about ongoing personnel problems and legal issues.”
Seeking answers to why the court had dissolved, the Kootenai County commissioners and the newspaper separately sought the e-mail between Kalani and Douglas, who was her supervisor.
According to an affidavit by Kootenai County Commissioner Gus Johnson, the e-mail he reviewed suggested an inappropriate relationship between the prosecutor and Kalani. Both have denied that suggestion.
The county, despite being named a defendant, is taking a neutral position in the lawsuit, said Bentley Stromberg, the attorney representing county commissioners. Instead of advocating for full disclosure or nondisclosure of the e-mail, Stromberg said, the county’s role is to explain, frame and preserve the documents and issues for the sake of judicial review.
In response to The Spokesman-Review’s records request, the county did not supply e-mail or portions of e-mail messages that the county deemed unrelated to conducting the public’s business or anything that contained juvenile, personnel, health or investigatory records.
Both Kalani and Douglas intervened in the lawsuit, and their attorneys argued for keeping their e-mail private. Their attorneys argued against the presumption that they are open to public purview.
Kirtlan Naylor, representing Douglas, also pointed out that the number of e-mail messages – more than 1,000 exchanged in about a year’s time – is misleading because many were replies to replies.
Contacted after the hearing, Kalani said she appreciated Naylor bringing up that point: “When an e-mail consists of ‘OK’ or ‘thanks,’ is that substantive? No.”
When asked why she had declined to release the e-mail herself, Kalani said, “For the same reason I don’t let a police officer search my apartment at random without a search warrant.
“Is it because I have something to hide? No,” she said. “We have a right to personal privacy.”
Kalani’s attorney argued that public employees have a constitutional right to privacy that overrides the state open records statute. Stegner agreed to study that point in more detail.
Duane Swinton, attorney for Cowles Publishing, argued that e-mail messages retained by the county government are, by definition, public documents under Idaho law. But what pushed these particular e-mail messages further into the public domain was the fact that they had been used by commissioners to review the reasons for the demise of the county’s JET Court.
“We are dealing with a review not of excessive e-mails, although that certainly is an issue here, but of the content of those e-mails,” Swinton said.
Swinton also pointed out that the county’s own policy regarding employee e-mail makes it clear that when employees use the county e-mail system, they waive their right of privacy and those e-mail messages will be treated as public record.