FRANKFORT, Ky. -- State employees' personal e-mails written on state computers on state time: you paid for them. 

But should you be entitled to see them under Kentucky’s open records law?

It's a question being pushed by a Frankfort man who wanted to see his wife's e-mails to a state government colleague, but it has much broader implications.

Steve Malmer suspected his wife was fooling around with a co-worker at the Kentucky State Justice Cabinet.

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His wife basically dared Malmer to go get her work e-mails to the suspected lover. So Malmer tried. Now the Justice Cabinet is suing Steve Malmer, trying to keep him from getting his wife's state government e-mails under the Kentucky Open Records Act, saying it could impact every state workers personal e-mail.

Malmer filed two open records requests early last year, ultimately asking for all personal, non-work related e-mails between his wife and a male co-worker. 

The cabinet refused, saying the e-mails were exempt from disclosure; they were personal and not related to agency actions. The justice folks also sent an investigator to talk to Malmer and told him he'd have to pay $2,000 for the records search.

Malmer didn't give up his quest, appealing the records denial to the attorney general, who sided with him. But the Justice Cabinet wasn't giving up either, filing a lawsuit against Malmer to block release of his wife's e-mails.

“I felt like a fly that they wanted to shoo away,” says Malmer.

Justice cabinet attorneys say they're fighting a broader battle. If Malmer wins, they say it will open the floodgates to every state employees' e-mails. One judge has ruled, in a governor Ernie Fletcher-related case, that all state e-mails aren't public records.

Attorney Jon Fleishaker helped write Kentucky’s open records law.

“I think for example, if you had a government employee who writes home and says, ‘I just heard from the doctor. I have cancer,’ most of us would say, gee, that shouldn’t be public,” he says.

The attorney general points out that Malmer's wife, and every other state worker, signs a form saying they understand they're violating state policy by using state computers for personal business. And Malmer really wants to see those e-mails.

Malmer says he and his wife are still together. The other Justice Cabinet employee resigned. The lawyer for the cabinet wouldn't comment on this case because it's still in the courts.

Web story produced by Jay Ditzer.