LITTLE ROCK, Ark. — The Arkansas Supreme Court has ruled that emails exchanged between an indicted former government employee and a woman with whom he had an extramarital affair are part of the public record, and are subject to disclosure under the state’s Freedom of Information Act (FOIA).

The court’s ruling — and perhaps to an even greater extent the minority dissent to that ruling — underscores the fact that one must exercise caution when communicating with public officials via government-owned equipment and networks, and that government employees should never use their computers for transmitting, viewing or storing sexually explicit materials.

The case involved former Pulaski County Comptroller Ron Quillin, who has been charged with allegedly embezzling $42,000 from the county, and Cheryl Zeier, a woman who worked for the company Government e-Management Solutions (GEMS), which performed services for the county under contract.

Following Quillin’s arrest in June, the Arkansas Democrat-Gazette newspaper filed a complaint in Pulaski County Circuit Court, arguing that Quillins emails were public records and should be subject to disclosure under the Arkansas FOIA.

The circuit court ruled that the emails were public record, and ordered that they be released to the Democrat-Gazette. On appeal by the county, the state Supreme Court remanded the case to the circuit court with instructions to review the emails individually to determine if they should be considered part of the public record.

In August, the circuit court entered an order that all the emails be released, except six “graphic, sexually explicit photos” and seven emails “sent on a chain of forwards.” The county appealed again, leading the case back to the state Supreme Court.

In its latest ruling on the case, the state Supreme Court upheld the circuit court’s finding, ruling that Zeier (who at the time of the decision was a Jane Doe appellee) enjoyed no expectation of privacy in her email exchanges with Quillin, due to the circumstances surrounding their communications.

“[T]he trial court ruled that [Zeier] had no expectation of privacy when conversing with Quillin on a county computer or the software vendor’s business email,” Associate Justice Jim Gunter wrote for the majority. “We simply cannot say that the trial court erred in this regard because the romantic relationship between Quillin and [Zeier] was indistinguishably intertwined with the business relationship between the county and GEMS … Under the facts of this case, where the messages often contained both business matters and personal issues, [Zeier], a contractor for the county, waived any right of privacy she may have had.”

Further, Gunter reasoned, the text of one of Zeier’s email exchanges with Quillin revealed that the two understood that using their work computers to communicate opened the possibility that the content of their messages could be disclosed.

“[O]ne particular email exchange between Quillin and [Zeier]…. is evidence that [Zeier] lost any expectation of privacy,” Gunter wrote. “The sexually explicit exchange concludes by [Zeier’s] response: ‘Hey now. This is work email. Goofball!’ Quillin then responds…. ‘Delete, delete, delete.’ This e-mail exchange proves that [Zeier] 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.”

While the court held that the emails between Quillin and Zeir are part of the public record, several emails containing sexually explicit images will not be released to the Democrat-Gazette for the simple reason that those emails were not part of the newspaper’s FOIA request.

Dissenting from the majority, Justice Tom Glaze wrote that he did not disagree with the holding that the county is bound to release the emails under the state’s FOIA, but argued that the court should have ordered the county to immediately disclose the emails when it first heard the case in June, rather than remand the case back to the circuit court.

“Such an employee’s inappropriate conduct should not be protected under any circumstances,” Glaze wrote. “If the majority had ruled, as it should have, that salacious photographs and material placed on the county’s 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’s business. It also is reasonable to believe that, when such inappropriate conduct is subject to public exposure, that abuse will end.”

Justice Paul Danielson, who concurred in part and dissented part with the majority’s decision, concurred with Glaze that Quillin’s emails should not have been protected under any circumstances. In a footnote to his dissent, Danielson also stated that he would have ruled that even the most graphic emails between Quillin and Zeier be disclosed, had those emails been part of the Democrat-Gazette’s FOIA request.

“While recognizing that the issue is not before us, I would have also ordered the disclosure of what have been termed the ‘sexually explicit’ emails, under the facts of this case,” Danielson wrote. [T]here is no mention or exception for sexually-explicit records contained within the FOIA. Thus, they too constituted a record of Quillin’s performance or lack of performance, for the same reasons as the other emails.”