E-mails ruled open to public

E-mail messages between a top Kootenai County lawyer and the women he is accused of harassing should not be kept secret, according to Idaho 2nd District Judge John R. Stegner.

But the hundreds of messages involving former Chief Deputy Prosecutor Rick Baughman will not be made public anytime soon. After a two-hour court hearing Wednesday in Coeur d’Alene, Stegner said he would wait to issue a formal ruling until the Idaho Supreme Court acts on a similar case.

The ruling from the state Supreme Court is not expected until summer.

Both cases involve efforts by The Spokesman-Review to view records from the Kootenai County prosecutor’s office.

On Tuesday, the Idaho Supreme Court considered the newspaper’s lawsuit to obtain a copy of a taxpayer-funded legal settlement between the county and a former juvenile drug court employee, Marina Kalani. The newspaper, which is also seeking copies of nearly 900 e-mail messages between Kalani and County Prosecutor Bill Douglas, has argued the records are public.

Stegner ruled in 2005 the e-mails between Kalani and Douglas were part of the public record, but the settlement agreement was not. The decision sparked appeals from both Kalani and the newspaper. Kalani said she had a constitutional right to privacy. The newspaper believes the documents are public records under state law.

The Spokesman-Review filed a lawsuit in February to compel the county to release records and e-mail correspondence involving sexual harassment claims made against Baughman, who served as Douglas’ top deputy. Baughman resigned on Feb. 1.

In comments made from the bench, Stegner said the e-mail messages between Baughman and his accusers should be shared with the public, but results from the outside investigation into the alleged wrongdoings are protected by attorney-client privilege.

“Absent any direction from the Supreme Court, I wouldn’t expect to rule any different than I did with the Kalani case,” Stegner said, adding later, “I don’t see any fundamental distinction between the facts of this case and the facts of the Kalani case.”

To avoid conflicts of interest, Stegner was brought in from Lewiston to hear the cases.

The county claims the Baughman e-mails “are not related in any manner to the conduct or administration of the public’s business,” according to court documents. An outside investigation into Baughman’s actions should also be kept secret because the investigation was conducted at the request of an attorney for the county’s insurer, the Idaho Counties Risk Management Program. The investigation cost the county $7,500.

Darrin Murphey, the county’s civil attorney, said the report was protected under the same laws that prevent a lawyer from testifying against a client. Further, the release of such a report would have a “chilling effect” on the honest testimonials of people interviewed for other personnel-related investigations, Murphey said. “If whatever they say is published the next day in the newspaper, well, you’re not going to get those.”

Keeping an outside investigator’s report secret is an end-run around state and county open records laws, argued Duane Swinton, an attorney for the newspaper. County policy typically dictates sexual harassment claims be investigated by the county’s human resources manager. The resulting report would be public, Swinton said.

Idaho law offers no clear guidance on the matter, Stegner said. But the e-mail records should be open for any citizen’s review, he said, because they “shed light on the administration of the public’s business.”

This isn’t true for all the e-mails requested by the newspaper, however. Stegner, who has reviewed the messages, said some are unsolicited advertisements known as spam.

“I can tell you there’s spam,” Stegner said during Wednesday’s hearing. “It’s hard for me to fathom how that would be pertinent to the public’s business.”