A little forbidden sex can lead judges and prosecutors down strange legal corridors, as we learned often during the long Whitewater ordeal. Now it is the Arkansas Supreme Court that has chased sex into what ought to be a forbidden corner. Friday, it created a giant loophole in the Freedom of Information Act, the public’s primary armor against government corruption and incompetence.
The court, though a bare majority, said it was possible that government employees doing their private personal business on government time and government equipment were entitled to have the stuff kept secret.
Taxpayers have only one certain right, which is to pay the public official while he’s managing his personal affairs, quite literally. Beyond that, a judge will have to determine if seeing the man’s personal correspondence is any of the taxpayers’ business.
The justices created this twisted law from a particularly humiliating case. Ron Quillin, the Pulaski County comptroller until a few months ago, was charged with theft of government property after he took a job with state government and the county got a look at his books.
It turned out that, among other things, he was carrying on an affair with a woman representing a company that was selling software to the county. He and the woman were exchanging steamy emails over the county computer and arranging assignations, for which the taxpayers sometimes paid his travel and expenses.
Newspapers wanted access to the emails, but county officials withheld them because they said the correspondence was personal and that the state Freedom of Information Act did not afford the public access to personal correspondence.
The Supreme Court majority – the vote was 4 to 3 – said the emails may very well be covered by the FOI, but that it had to be established first that the correspondence somehow had something to do with whether a county official was performing or not performing his public duties.
If they demonstrated whether the official was doing his job properly, the emails would have to be made public. If not, they were entirely personal and Quillin and his paramour were entitled to secrecy.
Circuit Judge Mary Ann McGowan, who had held that the emails were all public records, will now have to review the trove of erotic and pedestrian messages in chambers and decide which, if any, are public. What standard can she possibly use?
We like the three dissenters’ take on the issue. The Freedom of Information Act says that all record kept by the government are presumed to be public ones unless they are proven to meet one of the few specific and narrow exemptions in the law.
Quillin’s taxpayer-subsidized amours don’t qualify. Justice Tom Glaze, who is rumored to be contemplating retirement (say it ain’t so, Judge!), as usual did not mince words for the dissenters.
“[R]emanding the matter for an in-camera examination is unwarranted and a complete waste of time,” he thundered. “The majority’s position unnecessarily prolongs the process and increases the expenses of a FOIA request, and in so doing needlessly infringes upon a citizen’s right to obtain public records.”
The majority wanted us not to worry – the little loophole in public access is narrow and harmless. That is not the history of loopholes. They are like the Maginot Line. Open one breach and divisions will pour through.
