If you worked for the government, and you sent an email saying that to your paramour, would that count as a private email or a public, FOIAable, email?

Courts in Arkansas have been struggling to answer that question, as the Arkansas Democrat-Gazette writes in Court unseals filings in Quillin e-mail case.

Pulaski County employee, Ron Quillin, and a Pulaski County vendor, Cheryl Zeier, exchanged hundreds of emails. Some of those emails have been released under Arkansas open records laws.

At the same time that Pulaski County is using the e-mail record as part of a criminal case against Quillin on felony counts of forgery, theft and abuse of office, Pulaski County has also gone to court to prevent the release of all the emails–the romantic, private ones–in response to an open records request lodged by the Democrat-Gazette. Quillin himself, who no longer has a job, has not sought to legally intervene to suppress production of the emails.

Back in June, Circuit Judge Mary Spencer McGowan said that all 668 disputed emails were public. Pulaski County and Zeier appealed that ruling to the Arkansas Supreme Court. The higher court kicked the case back to McGowan, telling her she needed to individually assess each of the 668 emails to see if they qualified as public or private.

After conducting that review, McGowan said that all but nine of the emails should be made public. Pulaski County and Zeier appealed that finding to the Arkansas higher court.

One basis for Pulaski County’s appeal–taxpayers of Pulaski County, this must be costing you an arm and a leg–is that in her ruling, McGowan only explicitly analyzed the content of 25-50 of the 668 emails. Apparently, they think she should have written a brief on each of the 668 emails, including those that contain sexually explicit photos.

The e-mail that contained the comment, “I HATE WORKING WITH A ** HOLES”, also contained other text that has been described as “overwhelmingly personal”. And yet, the fact that it refers to work indicates that the writer of the email was aware of the work context. The reference to the work environment is the basis for a claim that the email is actually a public document.

Such is the state of FOIA litigation around emails. My condolences to the taxpayers.

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