Public records policy, practice at odds

From The Spokesman-Review

Betsy Z. Russell
Staff writer

Public records investigation

  • In an ongoing investigation of accusations of sexual harassment made against Kootenai County Chief Deputy Prosecutor Rick Baughman, The Spokesman-Review asked the county to provide all e-mails sent and received by Baughman over the past year. The newspaper also requested e-mails between a legal secretary in the prosecutor’s office and a Kootenai County magistrate.
  • According to County Attorney Erika Grubbs, printouts of Baughman’s e-mails totaled about 30,000 pages – a stack about 10 inches tall. Because of the volume of documents involved in the public records request, the newspaper narrowed its immediate request to include only e-mails sent and received in October 2006. The newspaper granted the county additional time to provide the Baughman e-mails from the previous 11 months.
  • The county released a portion of Baughman’s e-mails but has refused to release additional e-mails. The county says Baughman is exercising a “constitutional right to privacy” to keep those e-mails from public view.
  • On Tuesday, the county provided an electronic copy of all e-mails between the legal secretary and the county magistrate. In the process, the county inadvertently released about 50 e-mails between Baughman and former county victims advocate Laura Bonneville, who has alleged sexual harassment by Baughman.
  • Several of the 50 e-mails included attachments that were sexually explicit and graphic. Bonneville was the recipient of several lewd e-mails, but she also sent similar e-mails to Baughman via county e-mail. Some of the e-mails had been forwarded to Bonneville from other county employees in other departments, including the sheriff’s office. Some of the e-mails that Baughman sent to Bonneville he also copied to other employees of the prosecutor’s office.
  • The newspaper has asked the county to account for how many e-mails it is withholding from release. The county has not provided that information.

– Taryn Brodwater

Idaho’s public records law says all public records are open to the public unless they’re specifically exempted, and there’s no exemption for explicit e-mails sent by public employees on the job.

“There’s no specific exemption for e-mails, for any communication,” said Deb Kristensen, a media law attorney in Boise and a partner with Givens-Pursley law firm. “The public records act absolutely makes everything open. When a public employee is using public resources to conduct his or her business, those writings, regardless of form, are going to be considered public records.”

Kootenai County has repeatedly denied public release of certain county employee e-mails on the basis that the messages are private, even though they are created using publicly owned computer systems and the county’s policy states that e-mails are public records.

Attorneys for county employees have argued that public employees have a constitutional right to privacy that overrides the state open records statute.

Using that argument, the county is withholding an undisclosed number of e-mails between Kootenai County Chief Deputy Prosecutor Rick Baughman and three women who worked in his office. County officials have cited the privacy argument in declining to release the records.

In 2005, the county used the same argument in refusing to release 889 e-mail messages between County Prosecutor Bill Douglas and Marina Kalani, the former coordinator of a county juvenile court program.

Idaho District Judge John Stegner, in a July 2005 decision, ruled that county employees’ e-mails are public record. The case involved a lawsuit by The Spokesman-Review against Kootenai County for release of the Douglas-Kalani e-mails.

Douglas and Kalani appealed that ruling to the Idaho Supreme Court, but Douglas later dropped his appeal, while Kalani’s is pending. The court is not yet scheduled to hear arguments in the case.

Idaho’s Public Records Law contains dozens of exemptions from disclosure for specific types of information, from investigatory records of a law enforcement agency while the investigation is in progress, to medical records, trade secrets, and information in people’s individual income tax returns. But it says nothing about personal e-mails between government employees.

“So if they choose to use inappropriate language or include improper attachments, those are all going to be considered public record,” Kristensen said. “It’s just poor judgment in terms of using that language or putting those attachments on. But it doesn’t change the nature of the record. It’s still a public record.”

State Rep. George Eskridge, R-Dover, who has spoken out on public records issues in the state House of Representatives, said, “My opinion is when you’re using a government-supplied computer, the information you put on there is public information open to the public. I guess that makes it pretty simple.”

In response to a recent request for employee e-mails, the county on Tuesday gave The Spokesman-Review some sexually explicit e-mail exchanges between Baughman and a woman who worked in the prosecutor’s office and has accused him of sexual harassment.

Citing its privacy argument, the county had intended to withhold the e-mails, which included nude photos and sex videos, but inadvertently gave them to the newspaper on a computer disc.

“It just seems like this is the kind of information the public should be entitled to see, if your public officials are sending around naked pictures of people,” Kristensen said. “Is that really what they should be spending their time doing? The public has a right to know that.”

Eskridge said public employees at work should not be sending explicit e-mails.

“It’s not the right thing to do, it’s just not the right use of government-supplied equipment,” he said. “I mean, you’re in a public office, doing business for the public, and all transactions that you do should be in the interest of the public. If you want to do something privately, do it on your own equipment, or do it by personal mail that you’re paying for.”

In his July 2005 ruling, Stegner ruled that the public has a right to read the full contents of the e-mail exchanges between Douglas and Kalani.

Stegner ruled the e-mail messages fall under the state’s open records law because they were written on county property and contain information “relating to the conduct or administration of the public’s business.”

The judge rejected arguments by Douglas and Kalani that releasing the messages would infringe on their constitutional right to privacy and that the contents of the messages were also protected as employee records.

“E-mails between a supervisor and his subordinate are not personnel information; they are communications regarding the operation of the public’s business,” Stegner wrote.

From The Spokesman-Review

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