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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

E-mails open records, judge says

The public has a right to read the full contents of hundreds of e-mail exchanges between Kootenai County Prosecutor Bill Douglas and Marina Kalani, the former coordinator of a now-defunct juvenile court program, according to a ruling issued Friday by Idaho District Judge John R. Stegner.

Although the ruling was clear in its determination that the 889 e-mail messages in question are open records and not protected by privacy laws, none of the messages will be released until the Idaho Supreme Court weighs in on the issue.

Douglas said Friday he plans to appeal the ruling.

The lawsuit was filed by Cowles Publishing Co., owner of The Spokesman-Review, to force the release of the full contents of the e-mail messages between Douglas and Kalani. The newspaper asked for the messages hoping to gain a better understanding of the sudden collapse earlier this year of the Juvenile Education and Training Court, which was administered by Kalani.

County Commission Chairman Gus Johnson has previously said some of the e-mails that he has viewed raised concerns about the possibility of an improper relationship between Kalani and Douglas. Both Kalani and Douglas have repeatedly denied accusations of an affair. The commissioners were also concerned about alleged financial and ethical problems in the management of the federally funded juvenile drug court program.

Kalani resigned from her position in March. Two days later she received a $69,150 legal settlement from the county’s insurer. Stegner, of Moscow, Idaho, has not yet issued a ruling on whether to make the settlement agreement public.

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.”

Stegner 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 under an exemption granted to 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. “If there is an inappropriate relationship between an employee and her supervisor, that is, unfortunately, the public’s business. When a supervisor defends an employee and her performance, the public is entitled to know if there is something more than an employer/employee relationship which could cloud the supervisor’s judgment.”

Idaho case law has not yet spelled out a clear test to determine what constitutes an invasion of privacy regarding public records, Stegner wrote. Instead, Stegner applied a two-part test used in Washington based on a case from 2000 in which a state appeals court ruled that e-mail messages from a Spokane County court employee were private because they contained personal information and there was no “reasonable public interest in its disclosure.” After applying the test from the so-called Tiberino case, Stegner reviewed e-mails from Douglas and Kalani.

“Even though the disclosure of the content of some of the e-mails in question would be offensive to a reasonable person, the content of the e-mails is of legitimate concern to the public,” Stegner wrote.

Douglas said he will continue to fight to keep the e-mail messages private. “This issue is much more than about Bill Douglas,” he said. “It’s about privacy rights in cyberspace and the definitions of what is public records with regard to the Internet.”

Gary Graham, managing editor of The Spokesman-Review, said he was encouraged by Friday’s decision. “The judge said in his ruling that, ‘It is hard to imagine how the e-mails could be anything other than public records.’ We can’t say it any better than that.”