E-mails ruled public records

But coordinator’s settlement exempt

From the Spokesman-Review

Bill Morlin
Staff writer

The Idaho Supreme Court ruled unanimously Friday that more than 1,000 e-mails exchanged between Kootenai County Prosecutor Bill Douglas and a woman administering a federally funded juvenile court drug program are public records, not exempt from disclosure.

“It is clear that the e-mails contain information relating to the conduct and administration of the public’s business,” Justice Roger Burdick wrote in the 11-page opinion, with the court’s four other justices concurring.

The ruling came 30 days after the state’s highest court, sitting in Coeur d’Alene, heard oral arguments whether the public should be able to see e-mails between Douglas and Marina Kalani as well as an insurance settlement agreement with Kalani, the former coordinator of the Juvenile Drug Court program.

The Idaho Counties Risk Management Program, representing Kootenai County, agreed to pay Kalani $69,146 to settle a defamation damage claim she filed against the county after resigning in March 2005.

Reporters with The Spokesman-Review sought access to the settlement agreement about the same time they filed public records requests for the e-mails exchanged between her and Douglas between February 2004 and February 2005.

Idaho District Court Judge John Stegner ruled in July 2005 that the e-mails were public records but the settlement agreement was exempt from disclosure. Friday’s Supreme Court ruling completely backed the lower court’s decision.

The Supreme Court ruled that Idaho law allows for the release only of settlement amounts and statistical data, holding that “any other information contained in the settlement agreement or records relating to Kalani’s claim are exempt from disclosure.”

“This decision is an important victory for open government in Idaho,” said attorney Tracy LeRoy, who argued the case for the newspaper.

“This is the first public records case in Idaho to address e-mails as public records, and the court recognized that e-mails between government officials and employees that are investigated by county officials are the public’s business,” LeRoy said.

“We are gratified that the court affirmed the public’s right to investigate through public records how the county and its officials conduct public business,” the newspaper attorney added.

The court’s ruling is expected to affect a similar pending lawsuit in which the newspaper is attempting to gain public access to e-mails of Rick Baughman, Kootenai County’s former chief deputy prosecutor, who is facing sexual harassment allegations by two female co-workers.

In that case, Stegner ruled last month that Baughman’s e-mails on his county computers also should be available for public inspection, but he declined to order their release until the Supreme Court ruling in the Douglas-Kalani case.

Although he didn’t join in the appeal to the Supreme Court, Douglas expressed displeasure with the ruling.

“The court has now given us a bright-line rule: There is no privacy right in private e-mails between government employees, and I feel that is unfortunate,” the prosecutor said Friday afternoon.

Douglas said the court’s ruling, “while accepted by me, will have a chilling effect on e-mail communication about matters employees wish to remain private but do not otherwise violate any law.”

The Supreme Court ruling said Idaho’s public records act gives every person the “right to examine and take a copy of any public record of this state” unless there is a specific exemption.

Kalani’s attorney, Greg Horne, argued the e-mails between his client and the prosecutor were confidential, personnel records and should be exempt from disclosure.

But the Supreme Court didn’t buy that, saying the “public has a legitimate interest in these communications between this elected official and the employee whom he hired and supervised.”

Asked to comment Friday, Horne said, “I really don’t have much to say. I’m disappointed. It’s not appropriate to say much more until I have a chance to talk with my client.”

The court noted that when the juvenile drug court’s financial problems and eventual demise were reported in the media, Douglas defended Kalani’s management to the Board of County Commissioners and the public.

“The e-mail’s content relates to the public’s business because the public’s business includes job performance by a county employee, the spending policies of a county program, the issues surrounding the program’s demise, other employment-related claims and the validity and circumstances surrounding (Kalani’s) claim,” the court’s ruling said.

Douglas said the ruling means a government employee “can no longer complain about a co-worker, adverse work conditions, a supervisor, or act as a whistle-blower without fear of reprisal or that the complaint will become the public’s domain.”

“There never has been a county or state policy prohibiting use of e-mail for private communication, but those policies now ring hollow in light of (this) decision,” he said.

The prosecutor said the e-mails “will be released in an orderly fashion as directed by the court.”

“Unfortunately,” he said, “these e-mails have been the subject of unfair speculation about their nature, (but) they contain nothing obscene or unlawful.

“They constitute nothing more than innocent sarcasm, bantering, and joking between myself and a subordinate, and the type of informal communications that occurs daily in every workplace in America,” Douglas said.

“Unfortunately, some will place unfair speculation on their intent, regardless of content,” he said. “They contain no distasteful attachments. I would only hope that these are reviewed in proper context, and I would be glad to answer any questions about any individual e-mail when they are released.”

From the Spokesman-Review

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