The Colorado Supreme Court twisted itself into a pretzel in ruling that some workplace e-mails between Arapahoe County Clerk Tracy Baker (since recalled) and then-deputy Leesa Sale aren’t public records under state law. The court asserted that “the only discernible purpose for disclosing the content of these messages is to shed light on the extent of Baker and Sale’s fluency with sexually explicit terminology and to satisfy the prurient interests of the press and the public.”
That’s quite a stretch. The e-mails at issue were steamy (and unsuited for publication in a family newspaper), but they give insight to Baker’s workplace failings and Sale’s preferential treatment – issues of broad public interest in Arapahoe County. (Indeed, some of the 622 e-mails were leaked, and voters recalled Baker in 2004.)
A district court had ruled the e-mails were public records, but the Colorado Court of Appeals disagreed. Arapahoe County commissioners, who wanted to release all the e-mails, and the Rocky Mountain News appealed to the Supreme Court.
The high court, ruling unanimously, noted that the Colorado Open Records Act, amended in 1996 to include e-mails, exempts from public disclosure communications not related to official business. But these e-mails were written by the top administrators of a county office during work hours, using public equipment, sometimes commingled with official business and sometimes, we presume, to avoid doing any.
In sending the case back to district court, the Supreme Court said that e-mails involving official business could be released, personal e-mails couldn’t, and those that combined personal and official matters must be edited before release.
One encouraging note. Since the ruling distinguished between official and personal content, it doesn’t create a broad shield that officials can hide behind because “the court ordered that mixed content messages be provided for public inspection in redacted form,” according to media attorney Steve Zansberg.
Federal courts have held that employees have no reasonable expectation of privacy if an employer has said Internet communications will be monitored, Zansberg noted. That Baker and Sale exchanged so many intimate messages reflects their incredibly poor judgment, because the county – like many employers – monitors e-mails and computers.
It’s inappropriate to use office equipment on intimate personal matters, prurient or not. Baker met justice at the hands of county voters.
